Ex Parte Cameron

Patent Trial and Appeal Board

Jul 27, 2018

15137100 (P.T.A.B. Jul. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
15/137, 100 04/25/2016 Robert H. Cameron
64064 7590 07/31/2018
Ortiz & Lopez, PLLC
P.O. BOX 4484
ALBUQUERQUE, NM 87196-4484
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
1000-3036 CIP2 4270
EXAMINER
FRANK, RODNEY T
ART UNIT PAPER NUMBER
2856
NOTIFICATION DATE DELIVERY MODE
07/31/2018 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):
docketing@olpatentlaw.com
eofficeaction@appcoll.com
krukar@olpatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT H. CAMERON
Appeal2018-005673
Application 15/137, 100
Technology Center 2800
Before CATHERINE Q. TIMM, JEFFREY T. SMITH, and
MICHAEL G. McMANUS, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
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 1-20 under 35 U.S.C. § 101 as non-
statutory and 35 U.S.C. § l 12(a) or 112 ,r 1 (pre-AIA) as lacking
enablement. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 Appellant is the Applicant, Robert H. Cameron, who, according to the
Brief, is the real party in interest. Appeal Br. 2.
Appeal2018-005673
Application 15/ 137,100
The claims are directed to a system for measuring the volume of a
substance in a container. See, e.g., claims 1 and 11. Figure 14 illustrates the
system of claim 1. We reproduce Figure 14 below:
FIG, 14
Figure 14 is a cross-sectional illustration of an embodiment of Appellant's
measurement system.
Claim 1 with reference numerals from Figure 14 is reproduced below:
1. A system for measuring the volume of a substance
[130] in a container [105], comprising:
an emitting transducer [110] providing a signal generated
by a variable frequency oscillator [ 115] to excite acoustic
resonance of an acoustic circuit represented by a container
[105] having an unfilled space [106] filled with a vapor [125]
analogous to a capacitor of an acoustic circuit, and a tube [140]
analogous to an inductor of an acoustic circuit, wherein the
vapor [125] experiences friction as it moves within the tube
[140], which is analogous to a resistor of an acoustic circuit;
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Application 15/ 137,100
a sensing transducer [ 150] measuring amplitude of the
signal as it changes as the circuit achieves resonance and as the
container [ 105] is filled or emptied;
a speed of sound transducer [e.g., Fig. 6 (605,610, 615)2]
configured to emit and detect a signal ping inside said container
[105] to determine a speed of sound in said container [105];
a temperature sensor [1400] for measuring a temperature
of said substance [130]; and
a signal processing unit [160] coupled to the sensing
transducer [150] and the variable frequency oscillator [115]
driving the emitting transducer [110], said signal processing
unit [ 160] processing the signal sensed by the sensing
transducer [ 150] to extract it from background noise by
referencing the signal generated by the variable frequency
oscillator [115] and shifting said sensed signal by one or more
cycles according to a cross-correlation technique, and wherein a
frequency decrease in the sensed signal is indicative of a
decrease in the volume of the substance [130] in the container
[105].
Appeal Br. 21 ( claims appendix).
Claim 11, the only other independent claim, is similar in scope to
claim 1 except that it recites a deflector baffle instead of the combination of
a variable frequency oscillator and an emitting transducer. Figure 11 depicts
this alternative embodiment.
2 The Specification states that Figure 6 shows a speed of sound detector 600.
Spec. ,r 51. But Figure 6 does not have a reference numeral 600. It appears
that the combination of tube 605, conduit 610, and piezoelectric transducer
615 make up the speed of sound detector of Figure 6. Spec. ,r,r 48--49.
Figures 7 A---C depict other alternative speed of sound detectors that may be
used. Spec. ,r 51.
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Application 15/ 137,100
Patent Eligibility
OPINION
Section 101 states 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." But even if a claim at first blush
appears to be directed to one of the statutory classes of invention listed in §
101, it may be not eligible for a patent. "Phenomena of nature, though just
discovered, mental processes, and abstract intellectual concepts are not
patentable, as they are the basic tools of scientific and technological work."
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 70-72
(2012) (quotingDiamondv. Diehr, 450U.S. 175,185 (1981) (quoting
Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Thus, a claim that would
wholly pre-empt others from making and using those basic tools is not
patentable. Alice Corp. Pty. v. CLS Banklnt'l, 134 S. Ct. 2347, 2354--55
(2014); see, e.g., Gottschalkv. Benson, 409 U.S. 63, 71-72, 93 S. Ct. 253,
257, 34 L. Ed. 2d 273 (1972) (holding claims directed to a mathematical
formula for converting BCD numerals to pure binary numerals in a digital
computer would wholly pre-empt the mathematical formula and in practical
effect would be a patent on the algorithm itself.); and O'Reilly v. Morse, 56
U.S. 62, 113, 15 How. 62, 14 L.Ed. 601 (1853) (rejecting a claim that would
have broadly conferred "a monopoly" in the use of electromagnetism,
"however developed, for the purpose of printing at a distance").
In Alice, the Court extended a framework that had been used in Mayo
for distinguishing claims pre-empting laws of nature, natural phenomena,
and abstract ideas from claims amounting to patent-eligible applications of
those concepts. Alice, 134 S. Ct. at 2355. As stated in Alice:
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Application 15/ 137,100
First, we determine whether the claims at issue are
directed to one of those patent-ineligible concepts. If so, we
then ask, "what else is there in the claims before us?" To
answer that question, we consider the elements of each claim
both individually and as an ordered combination to determine
whether the additional elements transform the nature of the
claim into a patent-eligible application. We have described step
two of this analysis as 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.
Alice, 134 S. Ct. at 2355 (internal quotations and citations to Mayo omitted).
Because "[a]t some level, 'all inventions ... embody, use, reflect, rest
upon, or apply laws of nature, natural phenomena, or abstract ideas,"' one
must take care to strike the correct balance when considering the question of
patent eligibility. Alice, 134 S. Ct. at 2354.
The Alice analysis begins with the question: "whether the claims at
issue are directed to a patent-ineligible concept." Alice, at 2355. This "first-
stage filter is a meaningful one, sometimes ending the§ 101 inquiry." Thales
Visionix Inc. v. United States, 850 F.3d 1343, 1346 (Fed. Cir. 2017) (quoting
Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir.
2016).
To answer the question, it is useful to consider other cases that have
held claims eligible. The Supreme Court's decision in Diamond v. Diehr,
450 U.S. 175 (1981) is particularly informative here. Diehr's claims were
directed to a method of operating a rubber-molding press. Id. at 177 n.2
(1981 ). Diehr characterized the improvement as residing in the process of
constantly measuring the actual temperature inside the mold, recalculating
the ideal cure time, and automatically opening the press when the ideal cure
time equaled the actual time elapsed. Id. at 178-79. Although Diehr 's
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Application 15/ 137,100
claims employed a mathematical formula (Arrhenius equation) that was run
on a programmed digital computer, the claims in Diehr covered patent-
eligible subject matter because they did not pre-empt the use of the equation
itself, but only foreclosed others from applying that equation with all the
other steps in their claimed process: Steps of "installing rubber in a press,
closing the mold, constantly determining the temperature of the mold,
constantly recalculating the appropriate cure time through the use of the
formula and a digital computer, and automatically opening the press at the
proper time." Id. at 187. The Court explained that claims are patent eligible
under § 101 "when a claim containing a mathematical formula implements
or applies that formula in a structure or process which, when considered as a
whole, is performing a function which the patent laws were designed to
protect." Id. at 192.
Like Diehr 's claims, Appellant's claims are directed to an
improvement in an apparatus that performs a function that the patent laws
were designed to protect: An apparatus that measures the volume of a
substance in a container, such as the volume of fuel in a gas tank. The
improvement is to the measurement apparatus itself, not to the mathematical
techniques used in the signal processing unit.
"[T]he 'directed to' inquiry applies a stage-one filter to claims,
considered in light of the specification, based on whether 'their character as
a whole is directed to excluded subject matter. "' Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents
Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). One
way to determine what the claim is "directed to" is to focus on the claimed
advance over the prior art. Genetic Techs. Ltd. v. Merial L.L. C., 818 F .3d
1369, 1375 (Fed. Cir. 2016).
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Application 15/ 137,100
The Specification explains that systems for measuring the fuel level in
automobiles usually use a float connected to a potentiometer, but this
method of liquid measurement has many problems. Spec. ,r,r 6-7. Instead of
the float/potentiometer system previously used, Appellant's system
harnesses the natural phenomenon of Helmholz resonance. Spec. ,r 8.
Helmholz resonance is the phenomenon of air resonance within a cavity. Id.
The noise that occurs when one blows across the top of a soda pop bottle is
due to Helmholz resonance. Id. Appellant harnesses the Helmholz
resonance phenomenon by creating a system that uses a variable frequency
oscillator and emitting transducer ( claim 1) or deflector baffle ( claim 11) to
create acoustic resonance, uses a sensor to sense that resonance, and delivers
the sensed signal to a signal processing unit. Although the claims harness
the natural phenomenon of Helmholz resonance and the signal processing
unit uses a cross-correlation technique to shift the signal and extract it from
noise, the Examiner has not established that those basic tools are pre-empted
by the claims.
As in Diehr, the claims here only foreclose others from using
Helmholz resonance in the specific system claimed, i.e., a system that uses a
variable frequency oscillator and an emitting transducer or deflector baffle to
generate an acoustic signal in an acoustic circuit ( container, tube, and
vapor), a sensor to measure the amplitude as it changes with the change in
substance level in the container, and a signal processing unit to extract the
resonance signal from noise. Although separately, the apparatus uses
various components for their known functions, neither the Specification nor
any evidence provided by the Examiner shows that the combination of
components as claimed was well-understood, routine, and conventional in
the art. Instead, the Specification discloses that the system is an
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Application 15/ 137,100
improvement over a completely different system using a float and a
potentiometer. The inventive concept here is in the combination of the
devices making up the system, and not in the underlying concepts of
Helmholz resonance and cross-correlation.
We note that in coming to this conclusion, we interpret claim 1 as
affirmatively requiring a variable frequency oscillator even though this
component is not directly recited as a component of the system. This is
because the signal processing unit is recited as coupled to this component
and this requires that the variable frequency oscillator be present. We also
interpret claims 1 and 11 as affirmatively requiring a tube and container
because without them the acoustic circuit does not exist and the sensing and
signal processing cannot occur. 3
Appellant has identified a reversible error in the Examiner's
determination that the claims are directed to ineligible subject matter.
Enablement
The Examiner also rejects claims 1-20 under 35 U.S.C. § 112(a) or 35
U.S.C. § 112 ,r 1 (pre-AIA) as lacking enablement. Final 3--4. The rejection
relates to the cross-correlation technique recited in claims 1 and 11 and to
the use of acoustic resonance in order to determine liquid level. Id.
According to the Examiner, the Specification does not identify the
3 There is a problem with claim 11. Claim 11 recites that the signal
processing unit is coupled to the sensing transducer and the variable
frequency oscillator driving the emitting transducer, but claim 11 does not
recite a sensing transducer and variable frequency oscillator. Nor does the
Specification disclose such coupling in the embodiment using a baffle.
Spec. ,r 56. The problem, however, does not prevent us from deciding the
issues in the case because the issues presented to us focus on other aspects of
the claims.
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Application 15/ 137,100
correlation or provide details on how it is programmed into the signal
processing unit. Final 4. The Examiner further determines that "the claims
are for a system for measuring [the] level of a substance in a container and
somehow use an acoustic resonance in order to determine liquid level, but
[give] no explanation for how an acoustic resonance is related to liquid
level." Final 4.
We agree with Appellant that the Specification adequately enables the
claims. Appeal Br. 16-19.
With regard to cross-correlation, the Specification explains that cross-
correlation is the technique for extracting the desired resonant frequency
from background noise as recited in the claims. Spec. ,r,r 39--44. The
Specification explains that correlation software 505 (Fig. 5) extracts the
signals sensed by the sensing transducer 150 "from any background noise
affecting the acoustic resonance system using correlation functions." Spec.
,r 39. The Specification further explains that software 505 "can implement a
cross-correlation ( or auto-correlation) technique" and that "[ c ]ross-
correlation can be understood as a measure of the similarity of two
waveforms as a function of time lag applied to one of them." Spec. ,r 41.
The Specification provides further detail and illustrates how to use the cross-
correlation to "lift" the resonant frequency out of the background noise.
Spec. ,r,r 42--44, Figs. 9A-9D. The software delays one of the emitted signal
or the recorded signal in time and the signals are integrated or summed.
Spec. ,r 43, Figs. 9B-9D. When the two signals align the integration is
additive. Id. The noise is random and so it sums more slowly than the
resonant signal and this results in the "lifting" of the resonant signal from the
noise as shown in Figure 9D. Id. The explanation in the Specification
supports Appellant's position that the Specification would inform the
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Application 15/ 137,100
ordinary artisan of how to make and use the correlation without undue
experimentation.
With regard to the explanation of how an acoustic resonance is related
to liquid level, this is also enabled by the Specification. The Specification
explains that the container acts as a Helmholtz resonator that has a resonant
signal that changes as the substance level in the container changes. Spec. ,r,r
8, 36, Figs. 3A-3C. Figures 3A-3C illustrate resonant signals measured
when a container is near empty, half empty, and near full. Spec. ,r 36.
CONCLUSION
In summary:
1-20 § 101
1-20 § 112(a)
Summa
DECISION
The Examiner's decision is reversed.
REVERSED
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1-20
1-20