Thomas White et al.Download PDFPatent Trials and Appeals BoardNov 4, 201914936072 - (D) (P.T.A.B. Nov. 4, 2019) Copy Citation 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. 14/936,072 11/09/2015 Thomas WHITE 40125/04403 7213 30636 7590 11/04/2019 FAY KAPLUN & MARCIN, LLP 150 BROADWAY, SUITE 702 NEW YORK, NY 10038 EXAMINER KAN, YURI ART UNIT PAPER NUMBER 3662 NOTIFICATION DATE DELIVERY MODE 11/04/2019 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): mmarcin@fkmiplaw.com okaplun@fkmiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS WHITE, PETER GERLETT, and RON DUNSKY Appeal 2019-001420 Application 14/936,072 Technology Center 3600 Before DANIEL S. SONG, CHARLES N. GREENHUT, and JAMES P. CALVE, Administrative Patent Judges. PER CURIAM. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 21–24, 26, 28–33, 35 and 37–39. 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 PASSUR Aerospace, Inc. Appeal Br. 2. Appeal 2019-001420 Application 14/936,072 2 CLAIMED SUBJECT MATTER The claims are directed to a system and method for departure metering from airports. Claim 21, reproduced below, with emphasis added, is illustrative of the claimed subject matter: 21. A method, including: receiving, by an allocation processor, airport data from an airport network; receiving, by the allocation processor, flight plan data of a first flight from the airport network; calculating, by the allocation processor, an estimated taxi time (“ETT”) based on the airport data and the flight plan data, the ETT being an estimated time when the first flight will begin taxiing; allocating, by the allocation processor, a departure slot time for the first flight based on the ETT calculated by the processor; populating, by the allocation processor, the allocated departure slot time for the first flight in an allocation grid; receiving, by the allocation processor, a delay notification for the first flight; calculating, by the allocation processor, a second ETT for a second flight based on removing the first flight from the allocation grid; reallocating, by the allocation processor, a departure slot time for the second flight; re-populating, by the allocation processor, an adjusted allocation grid including the reallocated departure slot time of the second flight and a removal of the first flight, receiving, by the allocation processor, an adjusted departure rate over a predetermined period of time; proportionally adjusting, by the allocation processor, a plurality of departure slot times during the predetermined period of time based on the adjusted departure rate; and re-populating, by the allocation processor, the allocation grid based on the proportional adjustment. Appeal 2019-001420 Application 14/936,072 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Shiomi Baiada US 6,282,487 B1 US 6,789,011 B2 Aug. 28, 2001 Sep. 7, 2004 Green Roberts Mullen US 2006/0173609 A1 US 2009/0012660 A1 US 2009/0112660 A1 Aug. 3, 2006 Jan. 8, 2009 Apr. 30, 2009 REJECTIONS Claims 21, 22, 26, 29, 30, 35, 37, and 39 rejected on the ground of non-statutory double patenting as being unpatentable over claims 1 and 4 of U.S. Patent No. 9,180,978 B2. Final Act. 4. Claims 21–24, 26, 28–33, 35 and 37–39 rejected under 35 U.S.C. § 101 because the claimed invention is directed to ineligible subject matter. Final Act. 5. Claims 21, 22, 26, 28, 30, 31, 35, 37 and 39 rejected under 35 U.S.C. § 103(a) as being unpatentable over Green and Shiomi. Final Act. 10.2 Claims 23, 24, 32, and 33 rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Green, Shiomi, and Roberts. Final Act. 16. Claims 29 and 38 rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Green, Shiomi, and Baiada. Final Act. 17. 2 Canceled claims 27 and 36 appear to have been inadvertently included in this rejections. Appeal 2019-001420 Application 14/936,072 4 OPINION Double Patenting The only remark presented concerning the double-patenting rejection is, “Appellant will file a terminal disclaimer.” App. Br. 4. Accordingly, we summarily sustain the double-patenting rejection as not contested. See In re Berger, 279 F.3d 975 (Fed. Cir. 2002) (Affirming the Board’s affirmance of an uncontested rejection, holding that the appellant had waived the right to contest the rejection by not presenting arguments on appeal to the Board); Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (“the applicant can waive appeal of a ground of rejection”); 37 C.F.R. § 41.37(c)(1)(iv) (“any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal.”). Subject Matter Eligibility Principles of Law An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. Nonetheless, the Supreme Court has long interpreted § 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, 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 Appeal 2019-001420 Application 14/936,072 5 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.”). In Diamond v. Diehr, 450 U.S. 175 (1981), 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.” Id. at 176; 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 attempting to limit the use of the formula to a particular technological environment.” Id. (citing Gottschalk v. Benson, 409 U.S. 63 (1972), and Parker v. Flook, 437 U.S. 584 (1978)). The Court also indicated, however, that “an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.” Id. at 187. 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, Appeal 2019-001420 Application 14/936,072 6 566 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. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Jan. 7 Guidance”).3 That Revised Guidance instructs to first look to whether the claim recites: (1) a judicial exception, i.e., a law of nature, a natural phenomenon, or subject matter within the groupings of abstract ideas enumerated in the Revised Guidance (i.e., mathematical concepts, certain methods of organizing human activity, and mental processes); and (2) additional elements that integrate the judicial exception into a practical application (see, e.g., MPEP § 2106.05(a)–(c), (e)–(h)). 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. Analysis The claims are argued as a group (App. Br. 4–7) for which claim 21 is representative under 37 C.F.R. § 41.37(c)(1)(iv). The Examiner correctly 3 Available at https://www.govinfo.gov/content/pkg/FR-2019-01- 07/pdf/2018-28282.pdf Appeal 2019-001420 Application 14/936,072 7 determined that claim 21 is directed to obtaining data about airport congestion, which relates to relationships or interactions between people—a method of organizing human activity, and applying a mathematical concept, namely, a calculation of how to adjust departure rates and times, to that data. Final Act. 5–6. The Examiner correctly determined these methods of organizing human activity and performing calculations relate only to judicially-excepted abstract ideas. See, e.g. Jan. 7 Guidance at 52, 54 (Step 2A, prong 1) When claim 21 is read in light of the Specification, the only characteristics purportedly inventive are the “calculating” aspects of the claimed invention (emphasized above).4 See Spec. paras. 23, 44, and 46. Numerous cases have held such mathematical calculations, without more, are not patent eligible.5 Additionally, with the exception of recitations 4 “receiving, by the allocation processor, an adjusted departure rate over a predetermined period of time; proportionally adjusting, by the allocation processor, a plurality of departure slot times during the predetermined period of time based on the adjusted departure rate; and re-populating, by the allocation processor, the allocation grid based on the proportional adjustment” 5 Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“The concept of hedging . . . reduced to a mathematical formula . . . is an unpatentable abstract idea[.]”); Diamond v. Diehr, 450 U.S. 175, 191 (1981) (“A mathematical formula as such is not accorded the protection of our patent laws’’) (citing Gottschalk v. Benson, 409 U.S. 63, 67 (1972)); Parker v. Flook, 437 U.S. 584, 594 (1978) (“[T]he discovery of [a mathematical formula] cannot support a patent unless there is some other inventive concept in its application.”); Benson, 409 U.S. at 71–72 (concluding that permitting a patent on the claimed invention “would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself”); Mackay Radio & Telegraph Co. v. Radio Corp. of Am., 306 U.S. 86, 94 (1939) (“[A] scientific truth, or the mathematical expression of it, is not patentable invention[.]”); SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018) Appeal 2019-001420 Application 14/936,072 8 relating to a generic “allocation processor,” there is nothing in the claim that forecloses the method from being practiced mentally or with pen and paper. See, e.g. See Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016). A claim of this nature would serve to preempt others from adjusting, by any means or measure, airport departure rates based on the delay of a particular flight. This would effectively and improperly monopolize the activity and calculation themselves.6 The limitations related to the airport network do no more than identify a particular technological field of use.7 The claim elements pertaining to receiving, populating, and re- populating relate to generic data gathering and output or storage and do no more than add insignificant extra-solution activity to the calculation.8 Thus, the Examiner correctly determined, the alleged improvement is recited only as, and within, a series of broad abstractions that amount to no more than generic goals or results without any recitation of specific or particular structures or steps to integrate the calculation into a practical realization or application. Final Act. 6. See, e.g. Jan. 7 Guidance at 54–55 (Step 2A, prong 2). (holding that claims to a “series of mathematical calculations based on selected information” are directed to abstract ideas); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1350 (Fed. Cir. 2014) (holding that claims to a “process of organizing information through mathematical correlations” are directed to an abstract idea); Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1280 (Fed. Cir. 2012) (identifying the concept of “managing a stable value protected life insurance policy by performing calculations and manipulating the results” as an abstract idea). 6 See, e.g., MPEP 2106.05(e) and cases cited therein. 7 See, e.g., MPEP 2106.05(h) and cases cited therein. 8 See, e.g., MPEP 2106.05(g) and cases cited therein. Appeal 2019-001420 Application 14/936,072 9 The Examiner also correctly determined that the claim does not provide an inventive concept because it recites elements that are well- understood, routine and conventional. Final Act. 8; See, e.g.,CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373, 1375–76 (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) Guidance, 84 Fed. Reg. at 56 (step 2B). Appellant relies heavily on Amdocs (Israel) Limited v. Openet Telecom, Inc 841 F.3d 1288 (Fed. Cir. 2016) to argue eligibility. App. Br. 5–6. Amdocs is distinguishable because there the court there relied heavily on the “unconventional solution” in order to reach a conclusion of eligibility. Here the purported unconventional solution is “providing an inventive means for allocating departure time slots, including a slot allocation grid that processes information from a plurality of sources to allocate the slots in a quick and effective manner.” App. Br. 5. This purportedly inventive means is set forth in the claim language as, “an adjusted departure rate over a predetermined period of time.” The allocation of time slots for aircraft departures and the use of a grid to organize them recited at such a high level of generality relates to the abstract ideas discussed above. Without disclosing and/or claiming any specific teachings contributing to some advancement in the art they cannot be considered unconventional or to supply an inventive concept. The same conclusion must be reached regarding adjusting a departure rate over a period of time. The claim, being broad and abstract, does not require any specific step or algorithm for making such an adjustment. The claim also does not require that the rate is adjusted directly, or over any specified period of time. The proportional change to respective departure time slots is merely a result of Appeal 2019-001420 Application 14/936,072 10 changing a rate. Any change to a departure, whether to delay or hasten it, will change the departure rate at the very least during the time which an aircraft, and likely those in line after it, were scheduled, or “predetermined” to depart. Thus, “adjust[ing] a departure rate over a predetermined period of time” cannot reasonably be considered unconventional activity. Id. The same is true of data aggregation. See id at 6. Making “proportional” changes to time slots essentially amounts to another simple mathematical calculation used to absorb the rate change over multiple slots. See Spec para. 23 (describing how a 50% reduction in departure rate will result in having available only 7 of the originally scheduled 14 slots). This calculation involves only basic mathematics that also cannot reasonably be considered unconventional. For the foregoing reasons we sustain the Examiner’s rejection under 35 U.S.C. § 101. Obviousness In the obviousness rejections, the Examiner cites paragraphs 4, 12, 18 and 68 of Green to satisfy the limitations emphasized above. Final Act. 10– 11. Paragraphs 4 and 12 provide background discussing generally applicable air traffic “Metering/Spacing” restrictions which “restrict the rate of flow of a stream of flights through a fix or airspace (e.g., 60 flights/hour or 10 miles in trail).” Paragraph 18 then identifies the problem Green sought to solve: “If the overhead stream is already full at the time of the departure request, the aircraft is often held on the ground until a time slot occurs upstream, resulting in an inequitable delay for departure of the aircraft relative to the overhead traffic.” It is not apparent precisely what portion of paragraph 68 is considered by the Examiner to be relevant to the disputed Appeal 2019-001420 Application 14/936,072 11 limitations. Green’s examples are provided in the context of arrivals as opposed to departures. In discussing the cited portion of Green, Appellant correctly points out that when Green adjusts a time slot for an aircraft, Green does so by adjusting a flight on a case-by-case basis. Reply Br. 5–6; Green para. 41, Table 1 (inserting aircraft E between aircrafts C and D). The act of inserting an aircraft between two others arguably adjusts a rate at least over the predetermined time during which the two original aircrafts were scheduled to arrive. However, it is not clear how “based on” that rate adjustment “a plurality of departure slot times” are “proportionally adjusted” as is also required by each of the independent claims before us, claims 21, 30, and 39. As it is not apparent how this limitation is satisfied in view of the combined teachings of the prior art as applied by the Examiner, we do not sustain the Examiner’s rejection under 35 U.S.C. § 103(a). CONCLUSION The Examiner’s double-patenting rejection is affirmed. The Examiner’s subject-matter-eligibility rejection is affirmed. The Examiner’s obviousness rejections are reversed. DECISION SUMMARY Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 21, 22, 26, 29, 30, 35, 37, 39 Non- statutory double patenting 21, 22, 26, 29, 30, 35, 37, 39 21–24, 26, 28– 33, 35, 37–39 101 Ineligible subject matter 21–24, 26, 28–33, 35, 37–39 Appeal 2019-001420 Application 14/936,072 12 Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 21, 22, 26–28, 30, 31, 35–37, 39 103(a) Green Shiomi 21–22, 26−28, 30, 31, 35, 37, 39 23, 24, 32, 33 103(a) Green, Shiomi, Roberts 23, 24, 32, 33 29, 38 103(a) Green, Shiomi, Baiada 29, 38 Overall Outcome 21–24, 26, 28–33, 35, 37–39 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED9 9 “The affirmance of the rejection of a claim on any of the grounds specified constitutes a general affirmance of the decision of the examiner on that claim, except as to any ground specifically reversed.” 37 C.F.R. § 41.50(a)(1). Copy with citationCopy as parenthetical citation