Ex Parte Covello et al

Patent Trial and Appeal Board

May 20, 2016

12914756 (P.T.A.B. May. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/914,756 10/28/2010
85851 7590 05/24/2016
Schwegman Lundberg & Woessner I Raytheon
P.O. Box 2938
Minneapolis, MN 55402
FIRST NAMED INVENTOR
James A. Covello
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.
10-1114 (1547.127US1) 6407
EXAMINER
MALZAHN, DAVID H
ART UNIT PAPER NUMBER
2183
NOTIFICATION DATE DELIVERY MODE
05/24/2016 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):
uspto@slwip.com
SLW@blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES A. COVELLO and TORMOD FRETHEIM
Appeal2014-008098
Application 12/914,756
Technology Center 2100
Before THU A. DANG, NORMAN H. BEAMER, and
JOHN D. HAMANN, Administrative Patent Judges.
DANG, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2014-008098
Application 12/914,756
I. STATEivIENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-25, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
A. INVENTION
According to Appellants, the invention pertains to "preserving target
state information" and "determining, updating, and correcting kinematic
state information of a target" (Spec. i-f 2).
B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A process comprising:
determining using a computer process an initial
kinematic state estimate of a target using an active sensor of an
observer, the initial kinematic state estimate comprising a range
from the observer to the target, a velocity of the target, and an
acceleration of the target; and
constructing an Extended Kalman Filter using the
computer processor and the initial kinematic state estimate by:
updating using the computer processor the initial
kinematic state estimate as a function of time;
receiving using the computer processor an angles-
only measurement into the observer;
calculating using the computer processor a new
kinematic state as a function of the angles-only
measurement;
comparing using the computer processor the initial
kinematic state estimate with the new kinematic state;
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constraining using the computer processor a rate of
the target; and
correcting using the computer processor the initial
kinematic state estimate as a function of the comparison
of the initial kinematic state estimate with the new
kinematic strate;
wherein the target is permitted to maneuver and the
observer is not required to maneuver.
C. REJECTIONS
1. Claims 1-14 and 20-25 stand rejected under 35 U.S.C. § 101 as
being directed to nonstatutory subject matter.
2. Claims 1-25 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Calise (US 2010/0030716 Al, published Feb. 4, 2010). 1
II. ISSUES
The principal issues before us are whether the Examiner erred in
finding that:
1. Claims 1 's process comprising "determining using a computer
process an initial kinematic state estimate ... ," and "constructing an
Extended Kalman Filter using the computer processor and the initial
kinematic state estimate" is directed to nonstatutory subject matter; and
2. Calise teaches the claimed "determining," and "constructing"
steps (claim 1 ).
1 The rejection of claims 1-14 under 35 U.S.C. § 112 has been withdrawn
(Ans. 2).
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Application 12/914,756
III. FTI'-JDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Calise
1. Calise discloses using an adaptive element to augment a filter
for tracking an observed system (Abst.), wherein the filter comprises a
Kalman filter or an extended Kalman filter (i-f 12).
2. Sensors are implemented for determining speed or orientation
of sensing system 10 relative to target system 50, wherein the sensors can be
mounted in a vehicle, or located in a space station or ground station, to
observe the target (i-f 50).
3. The range between a target and a follower is regulated by
feeding back estimates of the target velocity obtained by processing camera
images (i-f 62).
IV. ANALYSIS
35 u.s.c. § 101
The Examiner concludes claims 1-14 and 20-25 are non-statutory
(Ans. 3). In particular, the Examiner concludes "the computing of the
kinematic state estimate of a target is an abstract idea" (Ans. 4). Although
the claims recite a "computer processor," the Examiner concludes "a
computer processor is a generic machine, not a particular machine" (id.).
We agree with the Examiner.
The Supreme Court's precedents "provide three specific exceptions to
§ 101 's broad patent-eligibility principles: 'laws of nature, physical
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Application 12/914,756
phenomena, and abstract ideas."' Bilski v. Kappas, 130 S. Ct. 3218, 3221
(2010). The Supreme Court reaffirmed that the fundamental concepts, by
themselves, are ineligible abstract ideas under § 101. Alice Corp. Pty. Ltd. v.
CLS Bank Int 'l, 134 S. Ct. 2347, 2358 (2014).
Here, the claimed "determining" and "constructing" steps could be
reasonably interpreted as an abstract idea subject to one of the exceptions to
§ 101 's broad patent-eligibility principles (Ans. 4). See CyberSource Corp.
v. Retail Decisions, Inc., 654 F.3d 1366, 1371 (Fed. Cir. 2011) (holding that
a method for verifying the validity of a credit card transaction over the
Internet to be nonstatutory as an abstract idea). In particular, we agree that
claim 1 's "determining" step and "constructing an Extended Kalman Filter"
step (comprising "updating," "receiving," "calculating," "comparing,"
"constraining" and "correcting" steps) comprise an abstract idea.
Although the claims recite steps "using a computer process[ or]"
(claim l) or "computer processors configured for" performing the recited
steps (claim 20), we further refer to Digitech, where the Federal Circuit has
provided additional guidance on the issue of statutory subject matter by
holding claims to a process of organizing information through mathematical
correlations was not tied to a specific structure or machine, and was thus an
abstract idea and ineligible under § 101. Digitech Image Tech., LLC v.
Electr.for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014), aff'd. That is, to
the extent the claims may require using a computer processor, "if a patent's
recitation of a computer amounts to a mere instruction to 'implemen[t]' an
abstract idea 'on ... a computer,' ... that addition cannot impart patent
eligibility." Alice Corp. v. CLS Bank International, 134 S. Ct. 2347, 2358,
(2014), (quoting Mayo, 132 S. Ct. at 1301). Here, although Appellants
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contend "the recitation of a computer processor. .. ties the subject matter of
[the claims] to a particular machine" (App. Br. 8), we conclude these claims
are directed to an abstract idea with only a tangential, if any, relationship to
a specific structure or machine, and thus, is ineligible under § 101. See also
Alice, 134 S. Ct. at 2358.
Accordingly, we find no error with the Examiner's rejection of claims
1-14 and 20-25 under 35 U.S.C. § 101.2
35 U.S. c. § 102(b)
With respect to the anticipation rejection of claims 1-25, Appellants
merely repeat the claim language and then contend Appellants' claimed
invention "overcomes" shortcomings in the prior art by providing a
"handover" feature, wherein "the Calise reference does not disclose this
handover feature" (App. Br. 9). In particular, Appellants contend, "neither
paragraph [0050], nor any other portion of Calise, disclose the concept of a
handover feature," and then repeat the claim language (id.). According to
Appellants, "Calise in general, and its claims in particular, relate to 'adaptive
units' and 'neural network"' and as such, "Calise is not anticipatory or even
all that relevant" (App. Br. 9-10). That is, "Calise does not relate to or
disclose a handover of information from one type of sensor (e.g., an active
one) to a passive one (e.g., an extended Kalman filter)" (App. Br. 10).
We consider all of Appellants' arguments and evidence presented, and
disagree with Appellants' contentions regarding the Examiner's rejections of
2 Although the Examiner does not reject claims 15-19 under 35 U.S.C.
§ 101, in the event of further prosecution, we leave it to the Examiner to
consider whether these claims should similarly be rejected under 35 U.S.C.
§ 101.
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the claims. We adopt as our own: ( 1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken, and (2) the
reasons set forth by the Examiner in the Answer in response to arguments
made in Appellants' Appeal Brief.
Although Appellants contend that Calise does not disclose a
"handover feature" that hands over "information from one type of sensor
(e.g., an active one) to a passive one (e.g., an extended Kalman filter)" and
that Calise's claims "relate to 'adaptive units' and 'neural network"' (App.
Br. 9-10), such contentions are not commensurate in scope with the recited
language of the claims. That is, the claims do not recite any "handover" of
any sensor from an "active one" to a "passive one," as Appellants contend
(id.). Further, nothing in the claims preclude a process using "adaptive
units" and "neural network" (id.)
Furthermore, we note Appellants' other contentions merely repeat
what a claim recites, which is not an argument for separate patentability of
the claim. 37 C.F.R. § 41.37(c)(vii). In particular, conclusory statements-
such as "Appellant's claimed subject matter overcomes [the discussed]
shortcoming of the prior art" or an assertion that the prior art does not
disclose the repeated claim language-that are unsupported by factual
evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984); Ex parte Belinne, No. 2009-004693, 2009 WL 2477843, slip op.
at 7-8 (BP AI Aug. 10, 2009) (informative), available at
http://www. uspto. gov /web/ offices/ dcom/bpai/its/fd09004693. pdf .
Neverthless, we find no error with the Examiner's finding that Calise
discloses the claimed invention (Ans. 4). Specifically, Calise discloses
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augmenting a Kalman filter or extended Kalman filter (FF 1) by using a
sensor for determining speed or orientation relative to target system (FF 2),
wherein the range between a target and a follower is regulated by feeding
back estimates of the target velocity obtained (FF 3). Thus, we agree with
the Examiner's reliance on Calise for disclosing "determining ... an initial
kinematic state estimate of a target using an active sensor of an observer"
and "constructing an Extended Kalman Filter" (claims 1, 15, and 20).
Although Appellants additionally contend in the Reply Brief "Calise
only relates to regulating the range between two aircraft" but "regulating the
range between two aircraft is not a disclosure of correcting an initial
kinematic state as a function of a calculated new kinematic state" (Reply Br.
2), we note that this argument could have been raised in the Appeal Brief.
Contrary to Appellants' contention "[t]he Examiner's Answer now refers to
paragraph [0060] of Calise" (id.), the Examiner's Answer does not rely on
any new portion of Calise, especially paragraph [0060] (Final Rej. 2-3; Ans.
4). It is inappropriate for Appellants to discuss for the first time in a Reply
Brief matters that could have been raised in the Appeal Brief. "The failure
to raise all issues and arguments diligently, in a timely fashion, has
consequences." Ex parte Borden, 93 USPQ2d 1473, 1475 (BPAI 2010)
(informative decision). Cf Kaufman Co. v. Lantech, Inc., 807 F.2d 970, 973
n.* (Fed. Cir. 1986) and McBride v. Merrell Dow and Pharms., Inc., 800
F.2d 1208, 1211 (D.C. Cir. 1986).
Nevertheless, we find no error in the Examiner's reliance on Calise's
regulation/change of the range between the target and the follower using
estimated target velocity feedback (FF 3) for teaching "correcting" the initial
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"kinematic state estimate" as a function of the comparison with the new
kinematic state, as claimed.
On this record, we find no error in the Examiner's rejection of claim
1, and claims 2-25 falling therewith (App. Br. 11) as being anticipated by
Calise.
V. CONCLUSION AND DECISION
We affirm the Examiner's rejections of claims 1-25 under 35 U.S.C.
§ 102(b), and of claims 1-14 and 20-25 under 35 U.S.C. § 101.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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