Braemar Manufacturing, LLC

Patent Trials and Appeals Board

Mar 9, 2021

2020004451 (P.T.A.B. Mar. 9, 2021)

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.
14/802,541 07/17/2015 Radouane Bouguerra 108622-0027-102 7159
156116 7590 03/09/2021
BRAEMAR MANUFACTURING, LLC
1285 Corporate Center Drive
Suite 150
Eagan, MN 55121
EXAMINER
MALAMUD, DEBORAH LESLIE
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
03/09/2021 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):
biotelemetry_docketing@cardinal-ip.com
chang.b.hong@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte RADOUANE BOUGUERRA
____________________

Appeal 2020-004451
Application 14/802,541
Technology Center 3700
____________________

Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
SEAN P. O’HANLON, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–4, 7, 8, 12–15, 18, 19, 34–37, and 40–44 under
35 U.S.C. § 101 as being directed to patent-ineligible subject matter.2 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. Appellant identifies the real party in interest as Braemar
Manufacturing, LLC. Appeal Br. 3.
2 The Examiner withdrew a rejection of claim 46 under 35 U.S.C. § 112,
first paragraph, and a rejection of claims 5, 6, 16, 17, 38, 39, 45, and 46
under 35 U.S.C. § 101. Ans. 4.
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THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A method for detecting a ventricular fibrillation event in an
electrocardiogram (ECG) signal, the method comprising:
applying a transform to the ECG signal to obtain an
analytical pair, the analytical pair including the ECG signal and
the transformed ECG signal;
determining a speed-amplitude from the analytical pair;
and
identifying an onset or offset of a ventricular fibrillation
event based on a value of a cost function of the speed-amplitude
over a window.
OPINION
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.
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
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settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010)
(“Claims 1 and 4 in petitioners’ application explain the basic concept of
hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (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
Supreme Court held that “a claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (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
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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. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The USPTO published revised guidance on the application of § 101.
See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg.
50 (Jan. 7, 2019) (the “2019 Eligibility Guidance” or “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:
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(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 2019 Eligibility Guidance.
Analysis
In contesting the rejection, Appellant argues independent claims 1, 12,
and 34 together (Appeal Br. 6–9), and relies on these same arguments for
dependent claims 2–4, 7, 8, 13–15, 18, 19, 35–37, and 40–44 (see id. at 4
(explaining that the claims stand and fall together)). We select claim 1 as
representative, and claims 2–4, 7, 8, 12–15, 18, 19, 34–37, and 40–44 stand
or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner determines that claim 1 is directed to a judicial
exception (i.e., an abstract idea) without significantly more. Final Act. 3–4.
The Examiner explains that claim 1 recites
steps of applying a transform to the ECG signal to obtain an
analytical pair, the analytical pair including the ECG signal and
the transformed ECG signal; determining a speed-amplitude
from the analytical pair; and identifying an onset or offset of a
ventricular fibrillation event based on a value of a cost function
of the speed-amplitude over a window. All of these concepts
relate to diagnostic data gathering. The concept described in
claim 1 is not meaningfully different than those diagnostic and
data gathering concepts found by the courts to be abstract ideas.
As such, the description in claim 1 of identifying ventricular
fibrillation based on a speed-amplitude of a cost function is an
abstract idea.
Id. at 4. The Examiner takes the position that
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[t]he judicial exception is identifying an onset or offset of a
ventricular fibrillation event based on a value of a cost function
of the speed-amplitude over a window, and applies to a mental
process (step 2a/prong 1); for example, using the information
gathered in previous steps, a person of ordinary skill in the art
could calculate the onset/offset of a ventricular fibrillation event
on a piece of paper.
Ans. 3.
The Examiner determines that claim 1 “does not include additional
elements that are sufficient to amount to significantly more than the judicial
exception.” Final Act. 4. The Examiner explains:
The claim recites no elements o[r] structures that perform the
claimed functions. Looking at the limitations as an ordered
combination adds nothing that is not already present when
looking at the elements taken individually. There is no
indication that the combination of elements improves the
functioning of a computer or improves any other technology.
Id.; see also Ans. 4 (explaining that the claim does not include additional
elements that integrate the judicial exception into a practical application).
(1) Step 1: Does claim 1 fall within a statutory category of § 101?
We first consider whether claim 1 recites one of the enumerated
statutory classes of subject matter, i.e., process, machine, manufacture, or
composition of matter, eligible for patenting under 35 U.S.C. § 101.
Claim 1 recites “[a] method for detecting a ventricular fibrillation event in
an electrocardiogram (ECG) signal” (Appeal Br. 12 (Claims App.)), which is
one of the statutory classes (i.e., a process) under 35 U.S.C. § 101.
(2) Step 2A, Prong One: Does claim 1 recite a judicial exception?
Appellant argues that “the claims are directed to a particular way for
achieving the desired outcome of distinguishing ventricular fibrillation from
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noise and are therefore not abstract.” Appeal Br. 6–7. This argument does
not apprise us of Examiner error.
Claim 1 recites a method of detecting ventricular fibrillation that
includes steps of “applying” a transform to an electrocardiogram (ECG)
signal to obtain an analytical pair, “determining” a speed-amplitude from the
analytical pair, and “identifying” a ventricular fibrillation event onset or
offset based on a value of a cost function of the speed-amplitude over a
window. Appeal Br. 12 (Claims App.). The Examiner determines that the
claim recites a mental process, which is one of the groupings of abstract
ideas identified in the 2019 Eligibility Guidance. See Ans. 3 (explaining that
“a person of ordinary skill in the art could calculate the onset/offset of a
ventricular fibrillation event on a piece of paper”); see also 2019 Eligibility
Guidance, 84 Fed. Reg. at 52 (explaining that the abstract idea exception
includes “[m]ental processes—concepts performed in the human mind
(including an observation, evaluation, judgment, opinion)”).3 Appellant
does not contest the Examiner’s position that claim 1 recites a mental
process. See generally Appeal Br. Thus, Appellant does not apprise us of
error in the Examiner’s determination that claim 1 recites a judicial
exception, namely, an abstract idea. See Final Act. 3.

3 We note that Appellant’s Specification describes the steps of applying a
transform, determining a speed-amplitude, and identifying an onset or offset
of a ventricular fibrillation event as mathematical calculations. Spec.
¶¶ 27–31, 37, 41–44, 53–54. In other words, the limitations recited in claim
1 could also be characterized as what the 2019 Eligibility Guidance calls
“[m]athematical concepts—mathematical relationships, mathematical
formulas or equations, mathematical calculations,” which is a grouping of
abstract ideas. 2019 Eligibility Guidance, 84 Fed. Reg. at 52.

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(3) Step 2A, Prong Two: Does claim 1 recite additional elements that
integrate the judicial exception into a practical application?
Having found that claim 1 recites a judicial exception, namely, an
abstract idea, we are instructed by the 2019 Eligibility Guidance to
determine whether the claim recites “additional elements that integrate the
exception into a practical application.” See 2019 Eligibility Guidance,
84 Fed. Reg. at 54; see also MPEP § 2106.05(a)–(c), (e)–(h). This
evaluation requires us to determine whether an additional element or a
combination of additional elements in the claim applies, relies on, or uses
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 exception. If the recited judicial exception is integrated
into a practical application, the claim is not “directed to” the judicial
exception.
Appellant argues that the instant claims are analogous to those at issue
in McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed.
Cir. 2016), because, “rather than merely claiming the idea of distinguishing
noise from ventricular fibrillation, the claims recite a specific way to achieve
this.” Appeal Br. 7. In particular, Appellant asserts that the “applying,”
“determining,” and “identifying” steps recited in claim 1 represent
specific ways to achieve the desired outcome [that] do not
preempt all ways of distinguishing between ventricular
fibrillation from noise, or even all ways of distinguishing
between ventricular fibrillation from noise using a cost
function. For example, the claims do not preempt identifying a
ventricular fibrillation event based on template matching or
based on a cost function of the ECG signal amplitude. Instead,
the claims only cover identifying an onset or offset of a
ventricular fibrillation event based on a value of a cost function
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of the speed-amplitude, which is defined as the product of the
speed and amplitude of the ECG signal.
Id. (citing Spec. ¶ 29). We are not persuaded by this argument.
Although 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, 573 U.S. at 216, 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, 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.
Claim 1 does not recite any additional element apart from the judicial
exception. The steps of “applying,” “determining,” and “identifying”
asserted by Appellant (see Appeal Br. 7) represent the identified judicial
exception (i.e., abstract idea) itself, as set forth above with regard to Step
2A, Prong One of the analysis. For example, claim 1 does not recite any
computer element or technological component in addition to the abstract
idea. Thus, claim 1 is “directed to” an abstract idea because the claim does
not recite any additional element or a combination of additional elements
that integrate the abstract idea into a practical application. See 2019
Eligibility Guidance, 84 Fed. Reg. at 53.
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(3) Step 2B: Does claim 1 add any specific limitations beyond
the judicial exception that are not “well-understood, routine,
and conventional” in the field?
Because we determine that claim 1 fails to recite an additional
element or combination of additional elements that integrate the judicial
exception into a practical application, in accordance with the 2019 Eligibility
Guidance, we next consider whether the claim adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional” in the field or instead “simply appends well-understood,
routine, conventional activities previously known to the industry, specified
at a high level of generality, to the judicial exception.” See 2019 Eligibility
Guidance, 84 Fed. Reg. at 56.
Appellant argues that “the Examiner has failed to explain why the
claim elements, taken as a whole, do not meet the significantly more
threshold of step two.” Appeal Br. 8 (citing BASCOM Global Internet
Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016)).
Appellant asserts that,
as in BASCOM, the Examiner has not properly analyzed the
claimed combination of elements for an inventive concept.
Even if the claimed limitations were found to constitute generic
computer functions (which is not conceded), the Action lacks
proper analysis of whether the particular claimed combination
might nevertheless yield a patent-eligible application of the
purported abstract idea.
Id. We are unpersuaded by this argument.
In BASCOM, the Federal Circuit determined that the claims at issue
were directed to a technology-based solution to filter Internet content that
overcame existing problems with other Internet filtering systems by taking a
known filtering solution—i.e., a “one-size-fits-all” filter at an Internet
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Service Provider—and making it more dynamic and efficient by providing
individualized filtering at the ISP. BASCOM, 827 F.3d at 1351. The court
held that the BASCOM claims satisfied the second step of the framework
described in Mayo and Alice, and, thus, were patent eligible, because the
invention’s customizable filtering solution improved the computer system’s
performance. See id. Here, Appellant has not identified in claim 1 any
element or combination of elements that would improve the functioning of a
computer system in a manner similar to the claims at issue in BASCOM.
We note that the relevant inquiry is not whether the claimed invention
as a whole supplies an inventive concept. See, e.g., BSG Tech LLC v.
BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (“[T]he relevant
inquiry is not whether the claimed invention as a whole is unconventional or
non-routine.”). Instead, the question under step two of the Mayo and Alice
framework (i.e., step 2B) is whether the claim includes additional elements,
i.e., elements other than the abstract idea itself, that “‘transform the nature of
the claim’ into a patent-eligible application.” Alice, 573 U.S. at 217
(quoting Mayo, 566 U.S. at 78); see also 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)). Here, as discussed above with regard to Step 2A, Prong Two, claim
1 does not recite any additional element or combination of elements other
than the judicial exception (i.e., abstract idea). In the absence of any
element or combination of elements recited in claim 1 other than the abstract
idea itself, the claim does not recite an element or combination of elements
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beyond the judicial exception that is not “well-understood, routine,
conventional” in the field or that contains any “inventive concept” or adds
anything “significantly more” to transform the abstract concept into a patent-
eligible application. Alice, 573 U.S. at 221; see also Berkheimer v. HP, Inc.,
890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J., concurring) (“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.”).
Accordingly, we sustain the rejection of claim 1, and claims 2–4, 7, 8,
12–15, 18, 19, 34–37, and 40–44 falling therewith, under 35 U.S.C. § 101 as
being directed to patent-ineligible subject matter.
CONCLUSION
In summary:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 7, 8,
12–15, 18,
19, 34–37,
40–44
101 Patent Ineligible
Subject Matter
1–4, 7, 8,
12–15, 18,
19, 34–37,
40–44

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