Apple Inc.

Patent Trials and Appeals Board

Aug 3, 2020

2019002167 (P.T.A.B. Aug. 3, 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.
14/712,871 05/14/2015 Pejman Lotfali Kazemi 18962-0910001/
P26930US1
1817
26183 7590 08/03/2020
FISH & RICHARDSON P.C. (APPLE)
PO BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
BUI, THA-O H
ART UNIT PAPER NUMBER
2825
NOTIFICATION DATE DELIVERY MODE
08/03/2020 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PEJMAN LOTFALI KAZEMI

Appeal 2019-002167
Application 14/712,871
Technology Center 2800
____________

Before LINDA M. GAUDETTE, JEFFREY R. SNAY, and
MICHAEL G. McMANUS, Administrative Patent Judges.

McMANUS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 seeks review of 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 Apple Inc.
Appeal Brief dated July 18, 2018 (“Appeal Br.”) 1.
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CLAIMED SUBJECT MATTER

The present application generally relates to systems and methods for
pedestrian pace estimation with pace change detection. Specification filed
May 14, 2015 (“Spec.”) ¶ 4. The Specification teaches systems and methods
where “[a]daptive bandwidth filters are used to estimate pedestrian pace or
speed more accurately than conventional pedometer or GNSS estimation
methods.” Id. ¶ 6. It further teaches that “[t]he disclosed implementations
can provide accuracy improvement for various device body locations (e.g.,
device in hand, device strapped to wrist or arm, user walking or running) as
well as reduced latency.” Id.
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below:
A method comprising:
receiving, by a processor of a mobile device, raw
pedometer data from a pedometer included in or coupled
to the mobile device, the raw pedometer data generated
by one or more motion sensors of the mobile device;
receiving, by the processor, raw Global Navigation
Satellite System (GNSS) data from a GNSS receiver
included in the mobile device and coupled to the
processor;
estimating, using a first filter implemented on the
processor and the raw pedometer data, a step frequency
of a user wearing or holding the mobile device;
determining, by the processor and based on data provided
by the GNSS receiver, a start of a dwell period;
responsive to the determining, estimating, using a second
filter implemented on the processor and based on the raw
GNSS data, a first speed of the user;
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determining, by the processor, a pace change, the pace
change determined from the estimated step frequency;
responsive to the pace change, adapting by the processor,
a bandwidth of the second filter;
estimating, by the second filter and using the adaptive
bandwidth, a second speed of the user; and
sending the second speed of the user to an application
running on the processor.
Appeal Br. 13 (Claims App.) (reformatted for clarity).
REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Yang US 2016/0007317 Al Jan. 7, 2016
Morrison US 2014/0288822 A1 Sept. 25, 2014

REJECTIONS
The Examiner maintains the following rejections:
1. Claims 1–20 are rejected under 35 U.S.C. § 101 as being
directed to patent ineligible subject matter. Final Action
dated Jan. 25, 2018 (“Final Act.”) 2–5.
2. Claims 1–20 are rejected under 35 U.S.C. § 103 as being
unpatentable over Yang in view of Morrison. Id. at 6–13.

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DISCUSSION
Rejection 1. The Examiner rejects claims 1–20 as being directed to
patent ineligible subject matter. Id. at 2–5.
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. Alice, 573 U.S. 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 id. 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 mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). 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. “A claim that recites an abstract idea must include
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‘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.
In January 2019, the PTO published revised guidance on the
application of § 101. 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Under the
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)).
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 Guidance.

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Step 1
Section 101 provides that “[w]hoever invents or discovers any new
and useful process, machine, manufacture, or composition of matter, or any
new and useful improvement thereof, may obtain a patent therefor, subject to
the conditions and requirements of this title.” 35 U.S.C. § 101.
Initially, we determine that claims 1–10 recite a “method.” A method
is considered a process under section 101. See 35 U.S.C. § 100(b). Claims
11–20 recite a “system.” These system claims require at least a receiver, a
sensor, a processor, and a computer readable medium. Appeal Br. 15–17
(Claims App.). Accordingly, we regard the claims as directed to a
“manufacture” under 35 U.S.C. § 101. As a result, under Step 1 of our
analysis, the claims are to processes or manufactures that fall within a
statutory class of invention.

Step 2A, Prong 1
Under Step 2A, Prong 1 of the Guidance, we determine whether claim
1, being directed to a statutory class of invention, nevertheless recites a
judicial exception.
The Examiner finds that claim 1 (and claims 2–10 which depend
therefrom) recites several abstract steps including “receiving” pedometer
and Global Navigation Satellite System (GNSS) data, “estimating” the step
frequency, “determining” the start of a dwell period, “estimating” a first
speed of the user, “determining” a pace change, and “estimating” a second
speed. Final Act. 3. The Examiner determines that these steps are similar to
certain processes determined to be abstract. Id.
The Guidance provides as follows:
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[T]he abstract idea exception includes the following groupings
of subject matter, when recited as such in a claim limitation(s)
(that is, when recited on their own or per se):
(a) Mathematical concepts— mathematical relationships,
mathematical formulas or equations, mathematical calculations.

Guidance 52. The Guidance cites caselaw holding that claims to a “series of
mathematical calculations based on selected information” are directed to
abstract ideas. SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163
(Fed. Cir. 2018). The Guidance additionally cites precedent holding that
claims to a “process of organizing information through mathematical
correlations” are directed to an abstract idea.” Digitech Image Techs., LLC
v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1350 (Fed. Cir. 2014).
The Specification indicates that the “estimating” steps are
mathematical in nature. The Specification teaches, for example, that
“[f]ilters 202, 208 are estimation filters and can be implemented using one of
a maximum likelihood estimator, Bayes estimator, minimum means squared
error (MMSE) estimator, particle filter and a Kalman filter.” Spec. ¶ 19.
The Specification additionally teaches that the “determining” steps are
mathematical in nature. The “determining, by the processor and based on
data provided by the GNSS receiver, a start of a dwell period” limitation
implicates a mathematical relationship. Id. ¶¶ 27, 40. With regard to
“determining . . . a pace change,” the Specification provides that “[i]n some
implementations, pace change detector 204 is implemented using a one-
dimensional (1D), n-order moving median filter.” Id. ¶ 22.
In view of such teachings, these “estimating” and “determining” steps
fall within the category of “mathematical formulas or equations,
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mathematical calculations,” i.e., mathematical concepts, which are abstract
ideas. See Guidance 52; see also October 2019 Update: Subject Matter
Eligibility (“October 2019 Update”) 4 (“a step of ‘determining’ a variable or
number using mathematical methods or ‘performing’ a mathematical
operation may also be considered mathematical calculations when the
broadest reasonable interpretation of the claim in light of the specification
encompasses a mathematical calculation.”).
Claim 1 further requires a step of “adapting by the processor a
bandwidth of the second filter.” Appeal Br. 13 (Claims App.). In regard to
this step the Specification teaches as follows:
Process 400 can continue by adapting the bandwidth of
the second filter in response to the pace change signal (408).
For example, one or more process noise values can be adapted
(e.g., adjusted or replaced) to adapt the bandwidth of the second
filter.

Spec. ¶ 39. The Specification further teaches that
[i]n the case of a change of motion activity classification, the
process noise value can be adapted (e.g., adjusted or replaced)
with a different value to allow filter 208 to catch up with the
new motion activity class. For example, the process noise q can
be larger for stationary or walking motion activity classes and
smaller for cycling or running motion activity classes.

Id. ¶ 29. Thus, the Specification teaches that the “adapting . . . a bandwidth”
step may encompass adjusting or replacing process noise values in response
to the pace change signal.
Claim 7 depends (indirectly) from claim 1 and further requires that
“adapting the bandwidth of the second filter further comprises: replacing a
process noise value in the second Kalman filter with a different process
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noise value.” Appeal Br. 14 (Claims App.). A Kalman filter is a multi-
equation algorithm. Spec. ¶ 21.
Accordingly, we determine that the claimed “adapting . . . a
bandwidth” step may encompass a step of adjusting a noise value to be used
in a mathematical algorithm (Kalman filter). This falls within the category
of “mathematical relationships, mathematical formulas or equations,
mathematical calculations,” i.e., mathematical concepts, which are abstract
ideas as described in the Guidance.

Step 2A, Prong 2
Next, we determine whether the claim is directed to an abstract
concept itself or whether it is instead directed to some technological
implementation or application of, or improvement to, this concept. See, e.g.,
Alice, 573 U.S. at 223 (discussing Diamond v. Diehr, 450 U.S. 175 (1981)).
The Guidance provides that a claim that integrates a judicial exception into a
practical application is not “directed to” the judicial exception. Guidance
54. One evaluates integration into a practical application by identifying
whether there are any additional elements recited in the claim beyond the
judicial exception and evaluating those additional elements individually and
in combination to determine whether they integrate the exception into a
practical application. Id. at 54–55.
In addition to the abstract elements identified above, claim 1 includes
certain additional (nonabstract) elements. Claim 1 requires a mobile device
having a processor (“receiving, by a processor of a mobile device, raw
pedometer data”) and a pedometer (“pedometer included in or coupled to the
mobile device”). Claim 1 requires the receipt of satellite and pedometer data
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by a processor where such data is subjected to mathematical analysis and
then sent to an application on the processor. The Specification asserts that
the claimed method may “provide accuracy improvement for various device
body locations (e.g., device in hand, device strapped to wrist or arm, user
walking or running) as well as reduced latency.” Spec. ¶ 6 (emphasis
added).
The October 2019 Update provides that, “if the additional limitations
reflect an improvement in the functioning of a computer, or an improvement
to another technology or technical field, the claim integrates the judicial
exception into a practical application and thus imposes a meaningful limit on
the judicial exception.” October 2019 Update 11. Here, the Specification
indicates that practice of the claimed method and system yields more
accurate pedometer data. This is an “improvement” of the sort contemplated
by the Guidance. Accordingly, we determine that the abstract claim
elements are integrated into a practical application and, therefore, the claims
are not “directed to” a judicial exception.
In view of the foregoing, we reverse the rejection of claims 1–20 as
directed to patent ineligible subject matter.

Rejection 2. The Examiner rejects claims 1–20 as obvious over Yang
in view of Morrison. Final Act. 6–13.
The primary reference, Yang, is titled “Signal Processing to Extract a
Pedestrian’s Moving Direction.” Yang, code (54). Yang teaches “an
apparatus for determining a moving direction of a user of a mobile device.
The apparatus includes a memory and a processor in communication with
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the memory. The processor is configured to determine an acceleration
signal associated with the mobile device.” Yang ¶ 5.
The Examiner finds that Yang teaches, inter alia, “determining, by the
processor and based on data provided by the GNSS receiver a start of a
dwell period.” Final Act. 7 (emphasis and brackets omitted). In support of
such finding, the Examiner cites to “Fig. 9 and related in Figs. 1–8, 10–17;
see paragraph [0011].” Id.
Figure 9 and paragraph 11 concern determining the start and end time
of a footstep. See Yang, Fig. 9, ¶ 11. The Examiner finds that the secondary
reference, Morrison, teaches “estimating, using a second filter implement on
the processor and based on the raw GNSS data, a first speed of the user.”
Final Act. 7. The Examiner concludes that a person of ordinary skill in the
art would have had reason to combine the teachings of Yang and
“Scherzinger” (rather than “Morrison”). Id. at 7–8.
In its principal brief, Appellant argues that “nowhere in FIGS. 1–17 of
Yang is there described or suggested ‘determining, by the processor and
based on data provided by the GNSS receiver, a start of a dwell period.’”
Appeal Br. 10. Appellant further asserts that paragraph 11 “does not
describe or suggest” determining the dwell time. Id. at 11. Appellant
acknowledges that Yang teaches that a processor determines the time for
each footstep but asserts that “there is no description or suggestion of the
features in claims 1 and 11.” Id. The Appellant further contends that
Morrison “does not remedy the failure of Yang to describe or suggest the
noted features in claims 1 and 11.” Id.
In the Answer, the Examiner determines that “dwell” as used in the
claims should be construed to mean “to remain for a time” and that Yang’s
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teaching of a processor that determines “a lapse of time” for each step
satisfies the “determining, by the processor . . . a start of a dwell period.”
Examiner’s Answer dated Nov. 14, 2018 (“Answer”) 5. The Examiner
further clarifies that use of the term “Scherzinger” is a typographical error
and that “the rejection is based upon the combination of Yang and Morrison,
as is apparent from the body of the rejection.” Id. at 6.
In its Reply Brief, Appellant contends that “‘dwell time’ in a Global
Navigation Satellite System (GNSS) is well-known to be defined as the time
required to test for the presence of a satellite signal.” Reply Brief dated Jan.
15, 2019 (“Reply Br.”) 2. Accordingly, Appellant reasons, the Examiner has
not shown that Yang teaches determining the start of a dwell period as
claimed. Id. at 3.
“[T]he PTO carries its procedural burden of establishing a prima facie
case when its rejection satisfies 35 U.S.C. § 132, in ‘notify[ing] the applicant
. . . by stating the reasons for [its] rejection, or objection or requirement,
together with such information and references as may be useful in judging of
the propriety of continuing the prosecution of [the] application.’” In re
Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (quoting 35 U.S.C. § 132).
“It is well-established that the Board is free to affirm an examiner’s
rejection so long as ‘appellants have had a fair opportunity to react to the
thrust of the rejection.’” In re Jung, 637 F.3d at 1365. The “prima facie
case” serves as a procedural mechanism that shifts the burden of going
forward to the applicant, who must produce evidence and/or argument
rebutting the case of unpatentability. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992).
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Here, the Examiner came forward with findings regarding the scope
and content of the prior art with specific citations to the art. See Final Act.
6–13. While it may have been preferable for the Examiner to identify the
portion of Yang relied upon as teaching the “dwell period” limitation with
greater particularity, the Examiner did identify Figure 9 and paragraph 11 as
exemplary. Id. at 7. This satisfies the procedural burden imposed by statute
(35 U.S.C. § 132).
In its principal brief, Appellant did not come forward with specific
allegations of error regarding the claimed “dwell period.” Appeal Br. 10–
11. Rather, Appellant made only general allegations of error. Id. Board
rules require that an appellant’s initial brief “shall contain . . . . The
arguments of appellant with respect to each ground of rejection, and the
basis therefor, with citations of the statutes, regulations, authorities, and
parts of the Record relied on. The arguments shall explain why the examiner
erred as to each ground of rejection contested by appellant.” 37 C.F.R.
§ 41.37(c)(1)(iv). Board rules further provide that “[a] statement which
merely points out what a claim recites will not be considered an argument
for separate patentability of the claim.” Id.; see also Ex parte Belinne,
Appeal No. 2009-004693 (Aug. 10, 2009) (designated informative). Here,
Appellant did not come forward with sufficient argument in its principal
brief to show specific error in the Examiner’s rejection.
Appellant presents more detailed argument in its Reply Brief. See
Reply Br. 2–3. Board rules provide that “[a]ny argument raised in the reply
brief which was not raised in the appeal brief, or is not responsive to an
argument raised in the examiner’s answer . . . will not be considered by the
Board for purposes of the present appeal, unless good cause is shown.” 37
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C.F.R. § 41.41(b)(2). In this regard, Appellant argues that the Examiner
“only now presents arguments in the Examiner’s Answer regarding the
Examiner’s interpretation of ‘dwell.’” Reply Br. 3. Appellant contends that
its more detailed arguments should be considered because they are
responsive to an argument “newly presented by the Examiner in the
Examiner’s Answer.” Id.
We are not persuaded that Appellant’s claim construction is
responsive to an argument first presented by the Examiner in the Answer or
that Appellant has shown good cause to present new argument. The
Examiner’s rejection put Appellant on notice of the general thrust of the
Examiner’s view of the claim. See Final Act. 7 (citing, inter alia, Figure 9
and ¶ 11). Appellant’s assertion of error should have included its arguments
regarding the proper scope of the claim limitation at issue. This would have
permitted the Examiner to respond and the Board to decide on a more
developed record. The Reply Brief is not “an opportunity to make
arguments that could have been made in the principal brief on appeal to
rebut the Examiner’s rejections, but were not.” In re Durance, 891 F.3d
991, 1001 (Fed. Cir. 2018).
Accordingly, we determine that the Board will not consider
Appellant’s claim construction argument presented in its Reply Brief. We
further determine that the arguments presented in Appellant’s principal brief
make only general allegations of error as to the Examiner’s determination of
obviousness and are insufficiently specific to present an issue for appeal.
Accordingly, Appellant has not shown error in the rejection of claim 1–20 as
obvious over Yang in view of Morrison.

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CONCLUSION

For the reason set forth above, the Examiner’s rejection as to subject
matter eligibility is reversed and the Examiner’s rejection as to obviousness
is affirmed.
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–20 101 Ineligible Subject
Matter
1–20
1–20 103 Yang, Morrison 1–20
Overall
Outcome
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).

AFFIRMED