THE BOEING COMPANY

Patent Trials and Appeals Board

Nov 4, 2020

14500196 - (D) (P.T.A.B. Nov. 4, 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.
14/500,196 09/29/2014 Nico ZIMMER 14-1354-US-NP 0064US 5508
120226 7590 11/04/2020
Patterson & Sheridan - The Boeing Company
c/o Patterson & Sheridan, LLP
24 GREENWAY PLAZA, SUITE 1600
Houston, TX 77046
EXAMINER
KASSIM, HAFIZ A
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
11/04/2020 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):
PAIR_eofficeaction@pattersonsheridan.com
PSDocketing@pattersonsheridan.com
PatentAdmin@boeing.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte NICO ZIMMER, BO VAABEN, WOJCIECH BOJANOWSKI,
PAWEL BLOKUS, and JACEK KMIECIK
____________

Appeal 2020-001909
Application 14/500,196
Technology Center 3600
____________

Before BIBHU R. MOHANTY, NINA L. MEDLOCK, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1–4, 6, 8–11, 13, 15–18, 20, and 22–27. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Our decision references Appellant’s Appeal Brief (“Appeal Br.,”
filed September 30, 2019) and the Examiner’s Answer (“Ans.,” mailed
October 21, 2019) and Final Office Action (“Final Act.,” mailed May 2,
2019). Appellant identifies “The Boeing Company” as the real party in
interest (Appeal Br. 2).
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CLAIMED INVENTION
The claimed invention “relate[s] to personnel scheduling, and more
specifically, to scheduling personnel to avoid disruptions to operations
during periods of fatigue” (Spec. ¶ 1).
Claims 1, 8, and 15 are the independent claims on appeal. Claim 1,
reproduced below with bracketed notations added, is illustrative of the
claimed subject matter:
1. A computer-implemented method of preemptive
pilot reassignment based on reconciling a pilot fatigue model
with non-pilot operating variances, the computer-implemented
method comprising:
[(a)] generating, using the pilot fatigue model, a plurality
of fatigue profiles based on a plurality of pilot factors including
rest cycle and home base time zone, each fatigue profile
characterizing a pattern of flying endurance specific to a
respective pilot of a plurality of pilots over time, wherein each
characterized pattern is distinct in nature, wherein the pilot
fatigue model does not account for any non-pilot operating
variances;
[(b)] receiving a fatigue profile selected from the
plurality of fatigue profiles, wherein the received fatigue profile
is specific to a first pilot of the plurality of pilots;
[(c)] identifying a predetermined schedule specifying
one or more flying operations that the first pilot is scheduled to
perform;
[(d)] determining, based on real-time operations data,
that a plurality of non-pilot operating variances are occurring, the
plurality of non-pilot operating variances having at least two
distinct variance types selected from air traffic control, weather,
aircraft maintenance, airport congestion, airport capacity, and
airport capability;
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[(e)] upon determining that the plurality of non-pilot
operating variances are occurring, identifying, based on
analyzing historical operations data, past delays to past instances
of the specified one or more flying operations due to past
instances of the plurality of non-pilot operating variances;
[(f)] projecting a flying endurance specific to the first
pilot, based on the fatigue profile specific to the first pilot;
[(g)] projecting a total delay to the predetermined
schedule due to the plurality of non-pilot operating variances,
based on the identified past delays, wherein each of the plurality
of non-pilot operating variances causes a respective, projected
delay that increased the projected total delay;
[(h)] determining, by operation of one or more computer
processors, a likelihood that the projected total delay to the
predetermined schedule exceeds the projected flying endurance
specific to the first pilot; and
[(i)] upon determining that the likelihood exceeds a
threshold likelihood, causing, at a least-cost point identified in
the predetermined schedule, a preemptive replacement of the
first pilot with a second pilot of the plurality of pilots for at least
one flying operation of the one or more flying operations
specified in the predetermined schedule, thereby performing a
pilot reassignment based on reconciling the pilot fatigue model
with the plurality of non-pilot operating variances, whereafter the
at least one flying operation is performed by the second pilot and
to the exclusion of the first pilot.
REJECTION
Claims 1–4, 6, 8–11, 13, 15–18, 20, and 22–27 are rejected under
35 U.S.C. § 101 as directed to a judicial exception without significantly
more.
ANALYSIS
Under 35 U.S.C. § 101, a claim is patent eligible if it claims a “new
and useful process, machine, manufacture, or composition of matter.”
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35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 216 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (2012), “for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts.” Alice Corp., 573 U.S. at 217.
The first step in that analysis is to “determine whether the claims at issue are
directed to one of those patent-ineligible concepts.” Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered “individually and ‘as an ordered combination’”
to determine whether there are additional elements that “‘transform the
nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo,
566 U.S. at 79, 78). This is “a search for an ‘inventive concept’ — i.e., an
element or combination of elements that is ‘sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself.’” Id. at 217–18 (alteration in original).
The U.S. Patent and Trademark Office (the “USPTO”) published
revised guidance on January 7, 2019 for use by USPTO personnel in
evaluating subject matter eligibility under 35 U.S.C. § 101. 2019 REVISED
PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (Jan. 7,
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2019) (the “2019 Revised Guidance”).2 That guidance revised the USPTO’s
examination procedure with respect to the first step of the Mayo/Alice
framework by (1) “[p]roviding groupings of subject matter that [are]
considered an abstract idea”; and (2) clarifying that a claim is not “directed
to” a judicial exception if the judicial exception is integrated into a practical
application of that exception. Id. at 50.
The first step, as set forth in the 2019 Revised Guidance (i.e.,
Step 2A), is, thus, a two-prong test. In Step 2A, Prong One, we look to
whether the claim recites a judicial exception, e.g., one of the following
three groupings of abstract ideas: (1) mathematical concepts; (2) certain
methods of organizing human activity, e.g., fundamental economic
principles or practices, commercial or legal interactions; and (3) mental
processes. 2019 Revised Guidance, 84 Fed. Reg. at 54. If so, we next
determine, in Step 2A, Prong Two, whether the claim as a whole integrates
the recited judicial exception into a practical application, i.e., whether the
additional elements recited in the claim beyond the judicial exception, apply,
rely on, or use the judicial exception in a manner that imposes a meaningful
limit on the judicial exception, such that the claim is more than a drafting
effort designed to monopolize the judicial exception. Id. at 54–55. Only if
the claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application do we conclude that the claim is
“directed to” the judicial exception, e.g., an abstract idea. Id.

2 The USPTO issued an update on October 17, 2019 (the “October 2019
Update: Subject Matter Eligibility,” available at https://www.uspto.gov/sites/
default/files/documents/peg_oct_2019_update.pdf) clarifying the
2019 Revised Guidance in response to public comments.
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If the claim is determined to be directed to a judicial exception under
revised Step 2A, we next evaluate the additional elements, individually and
in combination, in Step 2B, to determine whether they provide an inventive
concept, i.e., whether the additional elements or combination of elements
amounts to significantly more than the judicial exception itself; only then, is
the claim patent eligible. 2019 Revised Guidance, 84 Fed. Reg. at 56.
Here, in rejecting the pending claims under § 101, the Examiner
determined that independent claims 1, 8, and 15 recite “managing risk of
fatigue,” i.e., an abstract idea similar to other concepts that courts have held
abstract, and that the claims do not include additional elements that integrate
the recited abstract idea into a practical application (Final Act. 4–7). The
Examiner also determined that the claims 1, 8, and 15 do not include
additional elements sufficient to amount to significantly more than the
abstract idea itself (id. at 7–8). And the Examiner determined that
dependent claims 2–4, 6, 9–11, 13, 16–18, 20, and 22–27 are patent
ineligible for substantially similar reasons (id. at 8).
Independent Claim 1 and Dependent Claims 2–4, 6, and 22–26
Step One of the Mayo/Alice Framework (2019 Revised Guidance,
Step 2A)
Appellant argues that independent claim 1 is not directed to an
abstract idea at least because the claim does not recite subject matter that
falls within one of the enumerated groupings of abstract ideas (Appeal
Br. 12–14). Yet, Appellant cannot reasonably deny that the claim 1 recites a
method for scheduling personnel, i.e., aircraft pilots, so as to avoid
disruptions to operations during periods of pilot fatigue — a process that
falls squarely within the grouping of “certain methods of organizing human
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activity,” e.g., “managing personal behavior or relationships or interactions
between people.” 2019 Revised Guidance. 84 Fed. Reg. at 52.
This interpretation also is fully consistent with Appellant’s
Specification, which describes the present invention as a “[m]ethod, system,
and computer program product for predicting fatigue of personnel relative to
a schedule for the personnel” (Spec., Abstract) and for reassigning personnel
if a schedule for a vehicle operator, i.e. a pilot, could result in the operator
operating the vehicle past his or her fatigue point (see, e.g., id. ¶¶ 20–26).
We also are not persuaded by Appellant’s argument that claim 1
integrates the recited abstract idea into a practical application (Appeal
Br. 15–16).3 Appellant argues that “the claim recites a specific manner of
reconciling a pilot fatigue model with non-pilot operating variances in order
to apply the judicial exception in a meaningful way — namely, to cause
preemptive pilot reassignments” and that “the claim does not preempt any

3 The 2019 Revised Guidance references MANUAL OF PATENT EXAMINING
PROCEDURE, Ninth Edition (rev. Jan 2018) (available at
https://mpep.uspto.gov/RDMS/MPEP/E9_R-08.2017.) § 2106.05(a)–(c) and
(e) in non-exhaustively listing considerations indicative that an additional
element or combination of elements may have integrated the recited judicial
exception into a practical application. 2019 Revised Guidance, 84 Fed. Reg.
at 55. For example, an additional element may have integrated the judicial
exception into a practice application if the additional element (1) reflects an
improvement in the functioning of a computer or an improvement to other
technology or technical field; (2) implements the judicial exception with, or
uses the judicial exception with, a particular machine or manufacture
integral to the claim; or (3) effects a transformation or reduction of an article
to a different state or thing. Id. However, merely using a computer to
perform an abstract idea, adding insignificant extra-solution activity, or only
generally linking to a particular technological environment or field are not
sufficient for a practical application. Id.
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alternative approaches of reconciling a pilot fatigue model with non-pilot
operating variances” (Appeal Br. 16). Yet, Appellant misapprehends the
controlling precedent to the extent Appellant maintain that claim 1 is patent
eligible because there is no risk of preemption.
There is no dispute that the Supreme Court has described “the concern
that drives [the exclusion of abstract ideas from patent-eligible subject
matter] as one of pre-emption.” Alice Corp., 573 U.S. at 216. But,
characterizing preemption as a driving concern for patent eligibility is not
the same as characterizing preemption as the sole test for patent eligibility.
“The Supreme Court has made clear that the principle of preemption is the
basis for the judicial exceptions to patentability” and “[f]or this reason,
questions on preemption are inherent in and resolved by the § 101 analysis.”
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015) (citing Alice Corp., 573 U.S. at 216). “[P]reemption may signal
patent ineligible subject matter, [but] the absence of complete preemption
does not demonstrate patent eligibility.” Id.
We conclude, for the reasons outlined above, that claim 1 recites a
method of organizing human activity, i.e., an abstract idea, and that the
additional elements recited in the claim, i.e., “one or more computer
processors,” are no more than generic computer components used as tools to
perform the recited abstract idea (see, e.g., Spec. ¶ 37). As such, they do not
integrate the abstract idea into a practical application. See Alice Corp.,
573 U.S. at 223–24 (“[W]holly generic computer implementation is not
generally the sort of ‘additional featur[e]’ that provides any ‘practical
assurance that the process is more than a drafting effort designed to
monopolize the [abstract idea] itself.’” (quoting Mayo, 566 U.S. at 77)).
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Accordingly, we agree with the Examiner that claim 1 is directed to an
abstract idea.
Step Two of the Mayo/Alice Framework (2019 Revised Guidance,
Step 2B)
Having determined under step one of the Mayo/Alice framework that
claim 1 is directed to an abstract idea, we next consider under Step 2B of the
2019 Revised Guidance, the second step of the Mayo/Alice framework,
whether claim 1 includes additional elements or a combination of elements
that provides an “inventive concept,” i.e., whether an additional element or
combination of elements adds specific limitations beyond the judicial
exception that are not “well-understood, routine, conventional activity” in
the field (which is indicative that an inventive concept is present) or simply
appends well-understood, routine, conventional activities previously known
to the industry to the judicial exception. 2019 Revised Guidance,
84 Fed. Reg. at 56.
Citing Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057
(Fed. Cir. 2011), Appellant notes that the Federal Circuit has held that “even
claims directed to an abstract idea of ‘collecting and comparing known
information’ can amount to significantly more than an abstract idea if the
claims ‘put [the compared information] to practical use’” (Appeal Br. 17).
And Appellant argues that even if claim 1 “was considered to embody an
abstract idea, the claim amounts to significantly more than an abstract idea”
because “[l]ike the claims found to be patent-eligible in Classen,” claim 1 is
not “merely directed to determining a likelihood that a projected total delay
to a predetermined schedule exceeds a projected endurance specific to a first
pilot,” but instead, “requires a specific, practical application of the
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determined likelihood-namely, a preemptive replacement of the first pilot
with a second pilot . . . upon the determined likelihood exceeding a
threshold” (id. at 18).
Appellant’s reliance on Classen is misplaced. In Classen, the claims,
held patent eligible, recited methods that gathered and analyzed the effects
of particular immunization schedules on the later development of chronic
immune-mediated disorders in mammals in order to identify a lower risk
immunization schedule; mammalian subjects were then immunized in
accordance with the identified schedule (thereby lowering the risk that the
immunized subject would later develop chronic immune-mediated diseases).
Classen, 659 F.3d at 1060–61. Although the analysis step was an abstract
mental process that collected and compared known information, the Federal
Circuit concluded that the immunization step was meaningful because it
integrated the results of the analysis into a specific and tangible method that
resulted in the method “moving from abstract scientific principle to specific
application.” Id. at 1066–68.
Appellant ostensibly maintains here that preemptively replacing a first
pilot with a second pilot if a likelihood threshold is exceeded (i.e., if the
likelihood that a projected total delay to a predetermined schedule exceeds a
projected endurance specific to the first pilot) corresponds to the
immunization step of Classen (Appeal Br. 18). Yet, to the extent “upon
determining that the likelihood exceeds a threshold likelihood, causing . . . a
preemptive replacement of the first pilot with a second pilot,” i.e., step (i), as
recited in claim 1, may properly be regarded as an “additional element” (to
be considered in determining whether claim 1 amounts to “significantly
more” than the abstract idea) rather than part of the abstract idea, step (i) is
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no more than insignificant post-solution activity, which cannot be relied on
for patent eligibility. See Bilski v. Kappos, 561 U.S. 593, 610–11 (2010)
(“Flook [i.e., Parker v. Flook, 437 U.S. 584 (1978)] stands for the
proposition that the prohibition against patenting abstract ideas ‘cannot be
circumvented by attempting to limit the use of the formula to a particular
technological environment’ or adding ‘insignificant post-solution activity.”’)
(quoting Diamond v. Diehr, 450 U.S. 175, 191–92 (1981)); Elec. Power
Grp., LLC v. Alstom, S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (pointing
out 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”).
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner’s rejection of claim 1. We also sustain the rejection of
dependent claims 2–4, 6, and 22–26, which are not argued separately.
Independent Claims 8 and 15 and Dependent Claims 10, 11, 13, 16–18, and
20
Appellant argues that independent claims 8 and 15 recite limitations
comparable to those of claim 1, and that claims 8 and 15 are patent eligible
for the same reasons set forth with respect to claim 1 (Appeal Br. 18). We
are not persuaded that the Examiner erred in rejecting claim 1 under
35 U.S.C. § 101. Therefore, we sustain the Examiner’s rejection under
35 U.S.C. § 101 of independent claims 8 and 15, and claims 10, 11, 13, 16–
18, and 20, which depend therefrom, for the same reasons.
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Dependent Claim 27
Claim 1, reproduced above, recites “a method of preemptive pilot
reassignment based on reconciling a pilot fatigue model with non-pilot
operating variances.” Claim 27 depends indirectly from clam 1, and recites,
inter alia, that the non-pilot operating variances include “each variance type
selected from air traffic control, weather, aircraft maintenance, airport
congestion, airport capacity, and airport capability.”
Appellant argues that claim 27 is separately patentable and satisfies
step one of the Mayo/Alice framework because the claim “recites a novel
process and limits itself to specific features in a way that does not preempt
other approaches of achieving desired results” (Appeal Br. 19). Appellant’s
preemption argument is not persuasive for the reasons set forth above with
respect to claim 1.
Appellant also misapprehends the controlling precedent to the extent
Appellant maintains that claim 27 is patent eligible because it recites a novel
process. Neither a finding of novelty nor a non-obviousness determination
automatically leads to the conclusion that the claimed subject matter is
patent eligible. Indeed, “[g]roundbreaking, innovative, or even brilliant
discovery does not by itself satisfy the § 101 inquiry.” Ass’n for Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013). A novel and
non-obvious claim directed to a purely abstract idea is, nonetheless, patent
ineligible. See Mayo, 566 U.S. at 90; see also Diamond v. Diehr, 450 U.S.
175, 188–89 (1981) (“The ‘novelty’ of any element or steps in a process, or
even of the process itself, is of no relevance in determining whether the
subject matter of a claim falls within the § 101 categories of possibly
patentable subject matter.”).
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Appellant’s argument that claim 27 satisfies step two of the
Mayo/Alice framework is similarly unavailing (Appeal Br. 19–20).
Paraphrasing steps (d), (e), and (f), as recited in claim 1, and therefore, also
recited in claim 27, Appellant asserts that claim 27 includes additional
elements that amount to significantly more than the abstract idea.
That argument is not persuasive at least because the limitations that
Appellant identifies as the inventive concept, i.e., steps (d), (e), and (f), are
part of the abstract idea; they are not additional elements to be considered in
determining whether claim 27 includes additional elements or a combination
of elements sufficient to amount to significantly more than the judicial
exception.
It could not be clearer from Alice, that under step two of the
Mayo/Alice framework, the elements of each claim are considered both
individually and “as an ordered combination” to determine whether the
additional elements, i.e., the elements other than the abstract idea itself,
“transform the nature of the claim” into a patent-eligible application. Alice
Corp., 573 U.S. at 217 (citation omitted); see Mayo, 566 U.S. at 72–73
(requiring that “a process that focuses upon the use of a natural law also
contain other elements or a combination of elements, sometimes referred to
as an ‘inventive concept,’ sufficient to ensure that the patent in practice
amounts to significantly more than a patent upon the natural law itself”
(emphasis added) (citation omitted)). In other words, the inventive concept
under step two of the Mayo/Alice test cannot be the abstract idea itself:
It is clear from Mayo that the “inventive concept” cannot be the
abstract idea itself, and Berkheimer . . . leave[s] untouched the
numerous cases from this court which have held claims ineligible
because the only alleged “inventive concept” is the abstract idea.
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Berkheimer v. HP Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J.,
concurring); see also BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281,
1290 (Fed. Cir. 2018) (“It has been clear since Alice that a claimed
invention’s use of the ineligible concept to which it is directed cannot supply
the inventive concept that renders the invention ‘significantly more’ than
that ineligible concept.”).
Here, the only claim elements recited in claim 27 are the “one or more
computer processors, i.e., generic computer components used to perform
generic computer functions. Appellant cannot reasonably contend that there
is insufficient factual support for a determination that the operation of these
components is well-understood, routine, or conventional, where, as here,
there is nothing in the Specification to indicate that the operations recited
claim 27 require any specialized hardware or inventive computer
components or that the claimed invention is implemented using other than a
generic computer component to perform generic computer functions, e.g.,
receiving, processing, and outputting information. Indeed, the Federal
Circuit, in accordance with Alice, has “repeatedly recognized the absence of
a genuine dispute as to eligibility” where claims have been defended as
involving an inventive concept based “merely on the idea of using existing
computers or the Internet to carry out conventional processes, with no
alteration of computer functionality.” Berkheimer, 890 F.3d at 1373
(Moore, J., concurring) (internal citations omitted); see also BSG Tech,
899 F.3d at 1291 (“BSG Tech does not argue that other, non-abstract
features of the claimed inventions, alone or in combination, are not well-
understood, routine and conventional database structures and activities.
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Accordingly, the district court did not err in determining that the asserted
claims lack an inventive concept.”).
We are not persuaded, on the present record, that the Examiner erred
in rejecting dependent claim 27 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner’s rejection.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 6, 8–
11, 13, 15–
18, 20, 22–
27
101 Eligibility 1–4, 6, 8–
11, 13, 15–
18, 20, 22–
27

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