Ex Parte Chan et al

Board of Patent Appeals and Interferences

Jan 31, 2012

10624860 (B.P.A.I. Jan. 31, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte CLARIBEL CHAN, DAVID CHENG HU, TIM
LANDVOIGT, CHARLES NELSON, and JAMES TARVER
____________________

Appeal 2009-010908
Application 10/624,860
Technology Center 2100
____________________

Before: JOSEPH L. DIXON, JOHN A. JEFFERY, and
DEBRA K. STEPHENS, Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
3 and 5-31. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The claims are directed to computer systems, software and
methodologies for business solution management (BSM). (Spec. 3). Claim
1, reproduced below, is illustrative of the claimed subject matter:
1. A business solution management system comprising:
software comprising instructions stored in a computer readable
medium, the software:
allowing a user to design a business solution with user
parameters, instantiated user-selectable, pre-defined business
objects, and instantiated user-selectable, pre-defined technology
objects;
allowing a user to maintain and modify the business
solution designed by the user subsequent to implementation of
the business solution, the implementation based, at least in part,
on a current state of the business objects and the technology
objects; and
persisting the modified business solution for subsequent
presentation through a graphical user interface;
a first data repository comprising the instantiated user-
selectable, pre-defined business objects; and
a second data repository comprising the instantiated user-
selectable, pre-defined technology objects,

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Bowman-Amuah US 6,339,832 B1 Jan. 15, 2002
Chappel US 2002/0174005 A1 Nov. 21, 2002
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Fowler websites http://proquest.safaribooksonline.com/020165783X;
http://proquest.safaribooksonline.com/print?xmlid=020165783xlchlllevlsec;
http://proquest.safaribooksonline.com/print?xmlid=020165783xlch061evlse
c14; (18 pages marked by the Examiner) all dated May 14, 2007.

REJECTIONS
Claims 1, 3, 7, 15, 20, 21, 25, 28, 29 and 30 stand rejected under 35
U.S.C § 112, first paragraph, as failing to comply with the enablement
requirement. Ans. 3.
Claims 1-3 and 5-31 stand rejected under 35 U.S.C § 101 for non-
statutory subject matter. Ans. 5.
Claim 29 stands rejected under 35 U.S.C § 102(b) as being anticipated
by Fowler. Ans. 9.
Claims 1 and 25 stand rejected under 35 U.S.C §103(a) as being
unpatentable over Fowler and Chappel. Ans. 11.
Claims 30 and 31 stand rejected under 35 U.S.C 103(a) as being
unpatentable over Fowler and Bowman-Amuah. Ans. 15.
Claims 2, 3, 5-24, and 26-28 stand rejected under 35 U.S.C §103(a) as
being unpatentable over Fowler, Chappel, and Bowman-Amuah. Ans. 17.

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PRINCIPLES OF LAW
35 U.S.C. § 112, FIRST PARAGRAPH
An analysis of whether the claims under appeal are supported by an
enabling disclosure requires a determination of whether that disclosure
contained sufficient information regarding the subject matter of the appealed
claims as to enable one skilled in the pertinent art to make and use the
claimed invention. The test for enablement is whether one skilled in the art
could make and use the claimed invention from the disclosure coupled with
information known in the art without undue experimentation. See United
States v. Telectronics, Inc., 857 F.2d 778, 785, (Fed. Cir. 1988); In re
Stephens, 529 F.2d 1343, 1345 (CCPA 1976).
In order to make a rejection, the Examiner has the initial burden to
establish a reasonable basis to question the enablement provided for the
claimed invention. See In re Wright, 999 F.2d 1557, 1561-62, (Fed. Cir.
1993) (Examiner must provide a reasonable explanation as to why the scope
of protection provided by a claim is not adequately enabled by the
disclosure). A disclosure which contains a teaching of the manner and
process of making and using an invention in terms which correspond in
scope to those used in describing and defining the subject matter sought to
be patented must be taken as being in compliance with the enablement
requirement of 35 U.S.C. § 112, first paragraph, unless there is a reason to
doubt the objective truth of the statements contained therein which must be
relied on for enabling support. “Assuming that sufficient reason for such
doubt exists, a rejection for failure to teach how to make and/or use will be
proper on that basis.” See In re Marzocchi, 439 F.2d 220, 223 (CCPA 1971).
As stated by the court, "it is incumbent upon the Patent Office, whenever a
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rejection on this basis is made, to explain why it doubts the truth or accuracy
of any statement in a supporting disclosure and to back up assertions of its
own with acceptable evidence or reasoning which is inconsistent with the
contested statement. Otherwise, there would be no need for the applicant to
go to the trouble and expense of supporting his presumptively accurate
disclosure." Marzocchi, 439 F.2d at 224.
Once the Examiner has established a reasonable basis to question the
enablement provided for the claimed invention, the burden falls on the
Appellant to present persuasive arguments, supported by suitable proofs
where necessary, that one skilled in the art would be able to make and use
the claimed invention using the disclosure as a guide. See In re
Brandstadter, 484 F.2d 1395, 1406 (CCPA 1973). In making the
determination of enablement, the Examiner shall consider the original
disclosure and all evidence in the record, weighing evidence that supports
enablement1 against evidence that the specification is not enabling.
It is by now well-established law that the test for compliance with the
enablement requirement in the first paragraph of 35 U.S.C. § 112 is whether
the disclosure, as filed, is sufficiently complete to enable one of ordinary
skill in the art to make and use the claimed invention without undue
experimentation. In re Wands, 858 F.2d 731, 737 (Fed. Cir.
1988). “Enablement is not precluded by the necessity for some
experimentation .... However, experimentation needed to practice the

1 The Appellant may attempt to overcome the Examiner's doubt about enablement by pointing to
details in the disclosure but may not add new matter. The Appellant may also submit factual affidavits
under 37 CFR 1.132 or cite references to show what one skilled in the art knew at the time of filing the
application.
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invention must not be undue experimentation. The key word is ‘undue,’ not
‘experimentation.’” Id. at 736-737.

35 U.S.C. §101
“Whoever 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. “[N]o patent is available for a
discovery, however useful, novel, and nonobvious, unless it falls within one
of the express categories of patentable subject matter of 35 U.S.C. § 101.”
Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 483 (1974).

Statutory Subject Matter
The Court of Appeals for the Federal Circuit (“CAFC”) has clarified
the law regarding patent eligible subject matter for process claims. In re
Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc). The en banc court in Bilski
held that “the machine-or-transformation test, properly applied, is the
governing test for determining patent eligibility of a process under §101.”
Id. at 956. The court in Bilski further held that “the ‘useful, concrete and
tangible result’ inquiry is inadequate [to determine whether a claim is patent-
eligible under § 101.]” Id. at 960. The court explained the machine-or-
transformation test as follows:
The machine-or-transformation test is a two-branched inquiry; an
applicant may show that a process claim satisfies § 101 either by
showing that his claim is tied to a particular machine, or by showing
that his claim transforms an article. See [ Gottschalk v.] Benson, 409
U.S. [63] at 70, 93 S. Ct. 253 [(1972)]. Certain considerations are
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applicable to analysis under either branch. First, as illustrated by
Benson and discussed below, the use of a specific machine or
transformation of an article must impose meaningful limits on the
claim's scope to impart patent-eligibility. See Benson, 409 U.S. at 71-
72, 93 S. Ct. 253. Second, the involvement of the machine or
transformation in the claimed process must not merely be insignificant
extra-solution activity. See [ Parker v.] Flook, 437 U.S. [584] at 590,
98 S. Ct. 2522 [(1978)].

Id. at 961-62.
The court declined to decide under the machine implementation
branch of the inquiry whether or when recitation of a computer suffices to tie
a process claim to a particular machine. As to the transformation branch of
the inquiry, however, the court explained that transformation of a particular
article into a different state or thing “must be central to the purpose of the
claimed process.” Id. at 962. As to the meaning of “article,” the court
explained that chemical or physical transformation of physical objects or
substances is patent-eligible under § 101. Id. The court also explained that
transformation of data is sufficient to render a process patent-eligible if the
data represents physical and tangible objects, i.e., transformation of such raw
data into a particular visual depiction of a physical object on a display. Id. at
963. The court further noted that transformation of data is insufficient to
render a process patent-eligible if the data does not specify any particular
type or nature of data and does not specify how or where the data was
obtained or what the data represented. Id. at 962 (citing In re Abele, 684
F.2d 902, 909 (CCPA 1982) (process claim of graphically displaying
variances of data from average values is not patent-eligible) and In re Meyer,
688 F.2d 789, 792-93 (CCPA 1982) (process claim involving undefined
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“complex system” and indeterminate “factors” drawn from unspecified
“testing” is not patent- eligible)).
Additionally, the CAFC has held that transitory, propagating signals,
such as carrier waves, are not within any of the four statutory categories
(e.g., process, machine, manufacture or composition of matter) of patentable
eligible subject matter. Therefore, a claim directed to computer instructions
embodied in a signal is not statutory under 35 U.S.C. § 101. In re Nuijten,
500 F.3d 1346, 1357 (Fed. Cir. 2007).

We note that our reviewing court has determined that the “useful,
concrete, and tangible result” test associated with State Street Bank & Trust
Co. v. Signature Financial Group, Inc., 149 F.3d 1368, 1373 (Fed. Cir.
1998) is inadequate. In re Bilski, 545 F.3d 943, 959-960 (Fed. Cir. 2008)
(en banc); see also Bilski v. Kappos, 130 S.Ct. 3218, 3231 (2010)
(“[N]othing in today’s opinion should be read as endorsing interpretations of
§ 101 that the [CAFC] has used in the past. See, e.g., State Street, 149 F.3d,
at 1373; AT&T Corp., 172 F.3d, at 1357.”). Therefore, we find Appellant’s
§ 101 argument unavailing to the extent that it relies on the “useful, concrete
and tangible” test of State Street. (See App. Br. 20).

Statutory Subject Matter for Process Claims
The machine-or-transformation test is a useful and important clue, an
investigative tool, for determining whether some claimed inventions are
processes under § 101. See Bilski v. Kappos, 130 S.Ct. 3218, 3227 (2010).
The U.S. Court of Appeals for the Federal Circuit stated the “machine-or-
transformation test” for process claims as follows:
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The machine-or-transformation test is a two-branched inquiry;
an applicant may show that a process claim satisfies § 101
either by showing that his claim is tied to a particular machine,
or by showing that his claim transforms an article. See
[Gottschalk v.] Benson, 409 U.S. [63], 70 [(CCPA 1972)].
Certain considerations are applicable to analysis under either
branch. First, as illustrated by Benson and discussed below, the
use of a specific machine or transformation of an article must
impose meaningful limits on the claim’s scope to impart patent-
eligibility. See Benson, 409 U.S. at 71-72. Second, the
involvement of the machine or transformation in the claimed
process must not merely be insignificant extra-solution activity.
See [Parker v.] Flook, 437 U.S. [584,] 590 [(1978)].

In re Bilski, 545 F.3d 943, 961-62 (Fed. Cir. 2008) (en banc), aff’d sub nom.
Bilski v. Kappos, 130 S. Ct. 3218 (2010).
However, the machine-or-transformation test is not the sole test for
deciding whether an invention is a patent-eligible process. Bilski, 130 S.Ct
at 3227. “In searching for a limiting principle, [the Supreme] Court’s
precedents on the unpatentability of abstract ideas provide useful tools.” Id.
at 3229. The Supreme Court outlined one such precedent:
In Benson, the Court considered whether a patent application
for an algorithm to convert binary-coded decimal numerals into
pure binary code was a “process” under § 101. 409 U.S., at 64-
67. The Court first explained that “‘[a] principle, in the
abstract, is a fundamental truth; an original cause; a motive;
these cannot be patented, as no one can claim in either of them
an exclusive right.’” Id. at 67 (quoting Le Roy [v. Tatham, 55
U.S. 156], at 175 [(1852)]). The Court then held the application
at issue was not a “process,” but an unpatentable abstract idea.
“It is conceded that one may not patent an idea. But in practical
effect that would be the result if the formula for converting…
numerals to pure binary numerals were patented in this case.”
409 U. S. [63], at 71. A contrary holding “would wholly pre-
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empt the mathematical formula and in practical effect would be
a patent on the algorithm itself.” Id. at 72.

Bilski, 130 S.Ct at 3230.

35 U.S.C. §102
"[A]nticipation of a claim under § 102 can be found only if the prior
art reference discloses every element of the claim . . . ." In re King, 801
F.2d 1324, 1326 (Fed. Cir. 1986) (citing Lindemann Maschinenfabrik
GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1458 (Fed. Cir.
1984)). "[A]bsence from the reference of any claimed element negates
anticipation." Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d 1565, 1571
(Fed. Cir. 1986).
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of California, 814
F.2d 628, 631 (Fed. Cir. 1987). Analysis of whether a claim is patentable
over the prior art under 35 U.S.C. § 102 begins with a determination of the
scope of the claim. We determine the scope of the claims in patent
applications not solely on the basis of the claim language, but upon giving
claims their broadest reasonable construction in light of the specification as
it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The properly
interpreted claim must then be compared with the prior art.

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Appellants have the burden on appeal to the Board to demonstrate
error in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86
(Fed. Cir. 2006).

35 U.S.C. §103
“What matters is the objective reach of the claim. If the claim extends
to what is obvious, it is invalid under § 103.” KSR Int’l Co. v. Teleflex, Inc.,
550 U.S. 398, 419 (2007). To be nonobvious, an improvement must be
“more than the predictable use of prior art elements according to their
established functions.” Id. at 417.
Invention or discovery is the requirement which
constitutes the foundation of the right to obtain a patent . . .
unless more ingenuity and skill were required in making or
applying the said improvement than are possessed by an
ordinary mechanic acquainted with the business, there is an
absence of that degree of skill and ingenuity which constitute
the essential elements of every invention.

Dunbar v. Myers, 94 U.S. 187, 197 (1876) (citing Hotchkiss v.
Greenwood, 52 U.S. 248, 267 (1850)) (Hotchkiss v. Greenwood was cited
with approval by the Supreme Court in KSR, 550 U.S. at 406, 415, 427).

ANALYSIS
35 U.S.C. §112, FIRST PARA., ENABLEMENT
With respect to independent claims 1, 25, and 29, Appellants address
these claims as a single group. (Reply Br. 8). Therefore, we will select
independent claim 1 as the representative claim and address Appellants’
arguments thereto.
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The Examiner provides in analysis of the claimed invention with
respect to the "technology objects" pursuant to the Wands factors. (Ans. 3-
5). Appellants identify that "technology components" have examples stated
in para. [0055] and repeats the language of para. [0288 ] from the
Specification which states:

A "technology object" exists for each technology component
and each configuration structure in the architectural landscape.
The attributes for the components/structures are captured within
the technology object. Thus, the technology object clearly
describes the functionality and its purpose in the architecture, as
well as other specific information.

We note that "technology objects" exists for the few disclosed
examples, but also exists for "each configuration structure in the
architectural landscape." Here, we find no further discussion of each
configuration structure in the architectural landscape. Therefore, we find the
scope of technology object to be broad and undefined, which is the
Examiner's position with respect to the Wands factors, and would lead to
undue experimentation since there is a broad scope and little, if any,
guidance provided to skilled artisans. (Ans. 4-5). As a result, we agree with
the Examiner's reasoned conclusions.
Appellants further contend that their specification properly omitted
teachings with respect to the basic concept of object-oriented programming
and instantiation, use and manipulation of objects from data classes. (App.
Br. 10). Appellants further contend that the Examiner's statements regarding
"technology objects” in the Answer are untenable in view of the applications
disclosure and the level of skill in the art (Reply Br. 10), but Appellants
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provide no evidence regarding the required level of skill in the art (beyond
citing to published applications with unknown similarities to the claimed
invention). We find Appellants’ arguments to be unpersuasive in showing
of error in the Examiner's showing of a lack of enablement with respect to
the claimed invention.

35 U.S.C. §101
With respect to independent claim 25, we note that Appellants'
Specification in para. [00722] states that:
As used herein, the term "machine-readable medium" refers to
any computer program product, apparatus and/or device (e.g.,
magnetic discs, optical disks, memory, Programmable Logic
Devices (PLDs)) used to provide machine instructions and/or
data to a programmable processor, including a machine-
readable medium that receives machine instructions as a
machine-readable signal. The term "machine-readable signal"
refers to any signal used to provide machine instructions and/or
data to a programmable processor.

We further note that independent claim 25 merely sets forth the steps
of "providing…" which are broad enough to read on the disclosed "machine-
readable signal" which is any signal used to provide machine instructions
and/or data to a programmable processor. Therefore, Appellants' claimed
invention is directed to non-statutory transitory signals.
When the broadest reasonable interpretation of a claim covers a signal
per se, the claim must be rejected under 35 U.S.C. § 101 as covering non-
statutory subject matter. See In re Nuijten, 500 F.3d 1346, 1356-57 (Fed.
Cir. 2007) (transitory embodiments are not directed to statutory subject
matter).
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With respect to independent claims 1 and 29, we will address the
process which underlies the broad/generic system and article preambles. See
Cybersource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371 (Fed. Cir.
2011) “regardless of what statutory category (‘process, machine,
manufacture, or composition of matter,’ 35 U.S.C. § 101) a claim’s language
is crafted to literally invoke, we look to the underlying invention for patent-
eligibility purposes.” Cybersource, 654 F.3d at 1374 (emphasis added).
Following the Federal Circuit’s recent approach in Cybersource, 654 F.3d at
1375, we analyze the underlying invention of each of Appellants’
independent claims 1 and 29 as a process.
In considering the language of independent claim 1 as a whole, we
conclude that the underlying method of claim 1 “could be performed by a
human writing on a piece of paper.” Our reviewing court guides that “a
method that can be performed by human thought alone is merely an abstract
idea and is not patent-eligible under § 101.” Cybersource, 654 F.3d at 1373.
Because we conclude that the scope of the method steps of claim 1 cover
functions that can be performed in the human mind, or by a human using a
pen and paper, we conclude that these unpatentable mental processes fall
within the subject matter of claim 1.
We further note that the business solution management system of
independent claim 1 sets forth 3 elements which are: 1) software, 2) a first
data repository, and 3) a second data repository. The software further sets
forth 3 abstract steps of "allowing a user to design a business solution…",
"allowing a user to maintain and modify the business solution…," and
"persisting the modified business solution…."
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We find the claimed underlying process fails both steps of the
machine or transformation test. First, the abstract process steps of the
software in combination with the two repository elements does not recite a
specific machine. Second, the process does not set forth a transformation of
an article and the data is not limited to a specific type of data so as to impart
patent eligible subject matter. (In re Abele, 684 F.2d 902 (CCPA 1982). In
Abele, a method claim called for the use of X-ray attenuation data, which
necessarily involved production, detection, and display with a CAT scan.)
With respect to independent claim 25, Appellants contend that the
"computer-implemented method," meets both requirements of Bilski, and is
thus patent eligible." (Reply Br. 6). We disagree with Appellants'
contention and find that the mere preamble language of "computer-
implemented method" is not sufficient to tie the claim to a particular or
specific machine/computer.
Appellants further contend that that the "data being transformed by
the recited steps in claim 25 represent underlying physical objects" (Reply
Br. 7), but Appellants do not identify any specific definition for these
sweeping generalities. Therefore, Appellants’ argument is not persuasive of
error in the Examiner's showing of a lack of statutory subject matter based
upon a specific machine or transformation. Appellants further contend that
claim 25 contains "several transformative aspects" and that "[a]ny one of
these transformative aspects demonstrates sufficient transformation." (Reply
Br. 7). We disagree with Appellants’ conclusion and find that these
"transformative aspects" are not a "transformation" as discussed by Bilski.
Therefore, Appellants argument is not persuasive of error in the Examiner's
showing of a lack of statutory subject matter based upon a transformation.
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Therefore, Appellants have not set forth a statutory system, process,
or article under this test. While this may not be the sole test, Appellants
have not presented arguments to another test. Upon our review, we find
these claims to recite subject matter which is abstract. Therefore, Appellants
have not shown error in the Examiner's showing of non-statutory subject
matter of independent claims 1, 25, and 29.

35 U.S.C. §102
With respect to independent claim 29, Appellants maintain that
Fowler fails to teach multiple features of independent claim 29 such as the
"prompting the user to select …” step; and the "maintaining and modifying
the business solution" step. (Reply Br. 11). We disagree with Appellants
and find that the step of "prompting…" need be no more than a blinking
cursor. We find this to be taught by Fowler since the programmer at the
programming stage would have had this prompt and an end user
implementing software would have had a similar prompt for input. The
language of independent claim 29 sets forth no specific detail with respect to
the type of interface required for the prompting step. Therefore, we find
Appellants' argument to be unpersuasive of error in the Examiner's showing
of anticipation.
Appellants contend that business process object and the technology
object are two distinct components of the business solution and that Fowler
appears to indicate that both the behavior feature and the structural feature
are sub-components of a feature (they do not describe distinct components of
a business solution). (App. Br. 20). We disagree with Appellants, and we
find no support for Appellants' contention in the express language of
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independent claim 29. Therefore, we find Appellants' argument to be
unpersuasive of error in the Examiner's showing of anticipation.
Appellants contend that that Fowler does not teach that the business
solution may be modified, but that the few objects that are modified are
created anew rather than modified. (App. Br. 20). We disagree with
Appellants’ conclusion and find that Fowler teaches maintaining and
modifying the business solution. Furthermore, the language of independent
claim 29 provides no details regarding how the modifying step is performed
with respect to the business solution. Therefore, Appellants’ argument does
not show error in the Examiner's showing of anticipation.

35 U.S.C. §103

With respect to independent claims 1 and 25, Appellants address these
claims as a single group. (App. Br. 21-22). Therefore, we select
independent claim 1 as the representative claim and will address Appellants’
arguments thereto. Appellants maintain that the Chappel reference fails to
account for the deficiencies in Fowler as discussed with respect to
independent claim 29. (App. Br. 21). Since we did not find deficiencies in
Fowler alone, we find Appellants’ reliance thereon unavailing. With respect
to Appellants’ arguments concerning the first data repository and the second
data repository, the Examiner's reliance thereon appears to be that Chappel
teaches separate storage for its source database and its rules database which
would have been obvious to have two separate repositories for the disclosed
structural features and behavioral features of Fowler. Therefore, Appellants’
argument does not show error in the Examiner's showing of obviousness of
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representative claim 1. Therefore, we will sustain the rejection of
independent claims 1 and 25 and their respective dependent claims along
with dependent claims 30 and 31 which depend from independent claim 29.

CONCLUSIONS OF LAW
Appellants did not show error in the Examiner's showing of a lack of
enablement of claims 1, 3, 7, 15, 20, 21, 25, 28, 29 and 30. Appellants did
not show error in the Examiner's showing of a lack of statutory subject
matter of claims 1-3 and 5-31. Appellants did not show error in the
Examiner's showing of anticipation of independent claim 29. Appellants did
not show error in the Examiner's showing of obviousness of claims 1-3, 5-
28, 30, and 31.

DECISION
For the above reasons, the Examiner’s rejections of claims 1-3 and 5-
31 are all affirmed.

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) (2009).

AFFIRMED

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