Dance, Christopher R. et al.

Patent Trials and Appeals Board

Aug 30, 2019

14223187 - (D) (P.T.A.B. Aug. 30, 2019)

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.
14/223,187 03/24/2014 Christopher R. Dance 20131253US02-
CNDT3096US01
1246
144578 7590 08/30/2019
FAY SHARPE LLP / CONDUENT
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115
EXAMINER
YESILDAG, MEHMET
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
08/30/2019 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):
Conduent.PatentDocketing@conduent.com
docketing@faysharpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CHRISTOPHER R. DANCE, STEPHANE CLINCHANT, and
ONNO R. ZOETER
____________

Appeal 2018-007607
Application 14/223,1871
Technology Center 3600
____________

Before ROBERT E. NAPPI, SCOTT E. BAIN, and MICHAEL T. CYGAN,
Administrative Patent Judges.

BAIN, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–3, 5–12, 15–17, and 20, which constitute all
claims pending in the application. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.

1 Appellants identify Conduent Business Services, LLC as the real party in
interest. Br. 1.
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BACKGROUND
The Claimed Invention
The invention relates to estimating occupancy of parking spaces in a
parking facility. Spec. ¶¶ 2–4. According to the Specification, although
some parking facilities use sensors and other tools to determine occupancy
of parking spaces, the sensors are “prone to failure” and other problems. Id.
at ¶ 4. Appellants’ invention, therefore, provides a solution “without having
access to occupancy data for all of the spaces.” Id. at ¶ 5.
Claims 1 and 20 are independent. Claim 1 is illustrative of the
invention and the subject matter in dispute, and reads as follows:
1. A method, in an environment including a set of
parking zones, for estimating an average occupancy for a
set of stalls in one of the parking zones, based on
incomplete occupancy data, and implementing a policy
for at least one of the parking zones, the method
comprising:
for each discrete time of a series of discrete times:
acquiring payment data for the set of stalls; and
acquiring occupancy data for the set of stalls, the
set of stalls including a reporting subset of the stalls
which report occupancy indicating whether each stall in
the reporting subset of the stalls is occupied or not
occupied and a non-reporting subset of the stalls, wherein
each stall in the non-reporting subset of the stalls does
not report occupancy when the stall in the non-reporting
subset of the stalls is occupied, the occupancy data being
acquired only from the reporting subset of the stalls, a
number of occupied stalls in the set of stalls at the
discrete time being unknown; and
computing a set of observed variables for each of
the discrete times based on the acquired payment data
and occupancy data, the observed variables including:
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a count of the non-reporting stalls that are paid for;
a count of the reporting stalls that are occupied and
paid for;
a count of the reporting stalls that are occupied and
not paid for; and
a count of the reporting stalls that are unoccupied
and paid for;
based on the set of observed variables, for each
state out of a predefined set of possible states which each
include a state for each of the observed variables for each
stall, estimating a proportion of time that the set of stalls
spends in that state, given a total number of the stalls in
the set of stalls and number of reporting stalls, where a
fraction F(y) for each state y is defined as an average, for
a finite set of discrete times t ε T of an indicator function,
which has a value of 1 if Y(t) = y and 0 otherwise, where
Y(t) is the set of observed variables;
with a processor, estimating parameters for
computing a probability of a total number of occupied
stalls given the observed variables, each of the
parameters being a variable parameter which assumes a
defined probability distribution, the parameters including
a parameter representing a probability that a stall is paid
for, given that the stall is occupied, and a parameter
representing a probability that a stall is paid for, given
that the stall is unoccupied;
with a processor, estimating an average occupancy
of the set of stalls over the series of times as a function of
the observed variables, estimated proportion of time that
the set of stalls spends in each state, and estimated
parameters; and
based on the estimated average occupancy,
implementing a policy selected from:
setting a parking price for a subsequent time period
for the at least one of the parking zones;
guiding enforcement to one of the set of parking
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zones where estimated occupancy is high relative to
payments; and
guiding drivers to parking zones where it is
estimated that there will be empty spaces.
App. Br. 20–21 (Claims Appendix).
The Rejections on Appeal
Claims 1–3, 5–12, 15–17, and 20 are rejected under 35 U.S.C. § 101
as being directed to patent-ineligible subject matter. Final Act. 4–9.2
DISCUSSION
We have reviewed the Examiner’s rejections in light of Appellants’
arguments presented in this appeal. Arguments which Appellants could
have made but did not make in the Briefs are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(iv). On the record before us, for the reasons discussed
below, we are not persuaded the Examiner has erred.
Rejection Under 35 U.S.C. § 101
The Examiner determined that the claims are directed to the abstract
idea of “estimating an average occupancy for a set of stalls [in a] parking
zone[],” which is a mathematical formula and can be performed by a human
mentally (method of organizing human activity). Final Act. 4–6; Alice
Corp. v. CLS Bank lnt’l, 573 U.S. 208, 217 (2014) (describing two-step
framework “for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts”). Further, the Examiner found that
additional elements in the claims merely constitute generic computers and

2 Prior rejections under 35 U.S.C. § 112(b) and 35 U.S.C. § 103 have been
withdrawn. Final Act. 13; Ans. 3.
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processors that are “merely an environment that the abstract idea is
implemented/applied on.” Ans. 5. Accordingly, the Examiner concluded
that the claims constitute ineligible subject matter.
Appellants argue that the Examiner’s characterization of the claims is
a “broad generalization” and that the claims recite significantly more than an
abstract idea, namely, “specific limitations for estimating occupancy” that
are unconventional. App. Br. 7–10; Reply Br. 16.
After the Briefs were filed and Answer mailed in this case, the
USPTO published “Revised Subject Matter Eligibility Guidance”
synthesizing case law and providing agency instruction on the application of
§ 101. See USPTO’s January 7, 2019, 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Under
the Guidance, we must look to whether a claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h))
(“Step 2A, Prong Two”).
See 84 Fed. Reg. at 54–55.
Only if a claim recites a judicial exception and 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
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(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 id. at 56 (collectively “Step 2B”).
We begin our de novo review with Step 2A, Prong One of the
Guidance.3 Appellants’ claim 1 recites a method “for estimating an average
occupancy for a set of stalls” in a parking zone, comprising the following
steps: (1) acquiring “payment data” and “occupancy data,” (2) “computing
. . . variables” based on the aforementioned data, (3) “based on the set of
observed variables,” estimating a proportion of time that the set of stalls
spends in that state, (4) “estimating parameters for computing a probability”
and “estimating an average occupancy,” and (5) “implementing a policy”
such as price or enforcement. App. Br. 20–21.
The preamble of claim 1 and each of the foregoing steps therein
indicate that the claim is directed to estimating (i.e., computing) the
occupancy of parking stalls, as the Examiner determined. Step (1) relates to
acquiring data for the parking occupancy estimate, steps (2)–(4) relate to
computations (“estimates”) based on that data, and step (5) is a result of the
computations that produces an output, such as displaying an indicator. See,
e.g., Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1351–53 (Fed.
Cir. 2016) (“we have treated collecting information, including when limited
to particular content (which does not change its character as information), as

3 The Guidance refers to “Step One” as determining whether the claimed
subject matter falls within the four statutory categories identified by
35 U.S.C. § 101: process, machine, manufacture, or composition of matter.
This step is not at issue in this case.
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within the realm of abstract ideas”); id. at 1354 (“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”) (citing Content Extraction
and Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343
(Fed. Cir. 2014; Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed.
Cir. 2014)).
Accordingly, we agree with the Examiner’s determination that claim 1
recites a mathematical concept, a mental process and also recites a method
of organizing human activity deemed to be an abstract idea under the
Guidance (namely, establishing rules for an activity). See Bilski v. Kappos,
561 U.S. 593 (2010); Alice, 573 U.S. 208.
We next proceed to Step 2A, Prong 2 of the Guidance. Under this
step, if the claim “as a whole” integrates the abstract idea into a “practical
application,” it is patent eligible. Improving the functioning of a computer
can reflect integration of an idea into a “practical application.” Guidance
Sect. III. Although Appellants argue that the claims require the use of a
computer and cannot be performed mentally, Appellants do not explain, and
we do not discern, any improvement in computer technology (or any
technology) from the claimed invention. Compare Bascom Global Internet
Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016)
(“harness[ing a] technical feature of network technology in a filtering
system” to customize content filtering); Enfish, LLC v. Microsoft Corp.,
822 F.3d 1327, 1330–33, 1336 (Fed. Cir. 2016) (“self-referential database”
which permitted faster searching for data). The claims in Bascom and
Enfish, for example, recited a “specific improvement to the way computers
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operated,” see, e.g., Enfish, 822 F.3d at 1336, but Appellants’ claim 1 recites
a parking space occupancy estimating method that merely uses generic
computing elements. See, e.g., Spec. ¶¶ 29, 34 (“[t]he computer-
implemented system 10 may be embodied in a PC, such as a desktop, a
laptop, palmtop computer, portable digital assistant (PDA), server computer,
cellular telephone, tablet computer, pager, combination thereof, or other
computing device capable of executing instructions for performing the
exemplary method.”).
Appellants also do not direct us to any evidence that claim 1 recites
any unconventional rules, transform or reduce an element to a different state
or thing, or otherwise integrate the idea into a practical application. Rather,
claim 1 recites data being “acquired,” “comput[ed],” and “estimate[d].”
App. Br. 20–21 (Claims App’x). Reciting a result-oriented solution that
lacks any details as to how the computer performed the modifications is the
equivalent of the words “apply it.” Intellectual Ventures I LLC v. Capital
One Fin. Corp., 850 F.3d 1332, 1341–42 (Fed. Cir. 2017) (citing Elec.
Power Grp., 830 F.3d at 1356 (cautioning against claims “so result focused,
so functional, as to effectively cover any solution to an identified
problem”)); see also CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d
1366, 1375 (Fed. Cir. 2011) (mere data gathering does not make a claim
patent-eligible). The data gathering and processing steps in claim 1 do not
add meaningfully to the recited method.
Finally, under Step 2B of the Guidance we must look to whether the
claims include any additional “limitation or combination of limitations that
are not well-understood, routine [or] conventional.” 84 Fed. Reg. at 56. The
“question of whether a claim element or combination of elements is well-
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understood, routine and conventional to a skilled artisan in the relevant field
is a question of fact.” Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed.
Cir. 2018); see also Mortg. Grader, Inc. v. First Choice Loan Servs. Inc.,
811 F.3d 1314, 1325 (Fed. Cir. 2016) (holding that patent eligibility inquiry
may contain underlying issues of fact).
Claim 1 recites a method “for estimating an average occupancy” of
parking stalls. See supra. We agree with the Examiner’s finding that simply
using standard computer elements to implement rules for collecting and
processing parking occupancy data is well-understood, routine, and
conventional. Ans. 5. As the Examiner finds, claim 1 is directed to “results
of an analysis such as pricing, zones with high occupancy relative to
payments, zones with estimated empty spaces . . . wherein the
computer/processors are merely an environment that the abstract idea is
implemented/applied on.” Ans. 5.
Similarly, we agree with the Examiner’s determination that
Appellants’ preemption arguments are unpersuasive. Although “preemption
may signal patent ineligible subject matter, the absence of complete
preemption does not demonstrate patent eligibility.” FairWarning IP, LLC
v. Iatric Sys., Inc., 839 F.3d 1089, 1098 (Fed. Cir. 2016) (quoting Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015);
see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63
(Fed. Cir. 2015), cert. denied, 136 S. Ct. 701 (2015) (“[T]hat the claims do
not preempt all price optimization or may be limited to price optimization in
the e-commerce setting do not make them any less abstract.”). Where, as
here, “a patent’s claims are deemed only to disclose patent ineligible subject
matter under the Mayo framework . . . preemption concerns are fully
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addressed and made moot.” Ariosa, 788 F.3d at 1379.
Accordingly, we conclude that the Examiner did not err in concluding
that claim 1 constitutes ineligible subject matter. Appellants do not argue
the remaining claims separately. See 37 C.F.R. § 41.37(c)(1)(iv)). We,
therefore, sustain the rejection of claims 1–3, 5–12, 15–17, and 20 under 35
U.S.C. § 101.
DECISION
We affirm the Examiner’s decision rejecting claims 1–3, 5–12, 15–17,
and 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)(1)(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED