Ex Parte Gustin et al

Patent Trials and Appeals Board

Apr 3, 2019

14574744 - (D) (P.T.A.B. Apr. 3, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/574,744 12/18/2014
159954 7590 04/05/2019
HONEYWELL/PASCHALL MAAS
Patent Services
115 Tabor Road
P O Box 377 Mail Stop 4D3
MORRIS PLAINS, NJ 07950
FIRST NAMED INVENTOR
Jay W. Gustin
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.
H0046013-0104 1454
EXAMINER
TURRIA TE GASTULO, JUAN CARLOS
ART UNIT PAPER NUMBER
2446
NOTIFICATION DATE DELIVERY MODE
04/05/2019 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):
james.paschall@pm-ip.com
PatentServices-US@honeywell.com
maryann.maas@pm-ip.com
PTOL-90A (Rev. 04/07)
UNITED ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAY W. GUSTIN, LAURENCE A. CLAWSON, and
JAMES A. STRILICH
Appeal2018-005354 1
Application 14/574, 7442
Technology Center 2400
Before CAROLYN D. THOMAS, JAMES B. ARPIN, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
ARPIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's fmal
rejection of claims 1, 3-8, and 10-22. 3 App. Br. 1. Claims 2 and 9 are
1 In this Decision, we refer to Appellants' Appeal Brief ("App. Br.," filed
November 20, 2017) and Reply Brief ("Reply Br.," filed April 30, 2018); the
Final Office Action ("Final Act.," mailed April 7, 2017); the Advisory
Action ("Adv. Act.," mailed July 11, 2017); the Examiner's Answer
("Ans.,"mailed February 28, 2018); and the originally-filed Specification
("Spec.," filed December 18, 2014). Ratherthanrepeatthe Examiner's
fmdings and determinations and Appellants' contentions in their entirety, we
refer to these documents.
2 Appellants assert Honeywell International, Inc. is the real party-in-interest.
App. Br. 2.
3 The Examiner does not identify grounds for rejecting new claims 21 and
22, which were proposed by an Amendment of June 7, 2017, and entered on
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canceled. App. Br. 35, 37 (Claims App.). We have jurisdiction under
35 U.S.C. § 6(b).
We affrrm-in-part.
STATEMENT OF THE CASE
Appellants' recited apparatus, systems, and methods "relate[]
generally to industrial process control and automation systems. More
specifically, this disclosure relates to an apparatus and method for
virtualizing a connection to a node in an industrial control and automation
system." Spee. ,r 2; see id. ,r,r 6-8.
As noted above, claims 1, 3-8, and 10-22 are pending. Claims 1, 8,
and 15 are independent. App. Br. 35, 37, 39 (Claims App.). Claims 3-7 and
21 depend directly from claim 1, claims 10-14 and 22 depend directly or
indirectly from claim 8, and claims 16-20 depend directly or indirectly from
claim 15. Id. at 35--40.
Claim 1, reproduced below, is representative.
1. An apparatus comprising:
at least one first hardware card configured to communicate,
via a frrst hardware interface, over a local control network (LCN)
with one or more components of an industrial process control and
automation system;
at least one second hardware card configured to
communicate, via a second hardware interface, over a redundant
Ethernet network with a computing platform that virtualizes at
least one other component of the industrial process control and
automation system; and
July 3, 2017. See Adv. Act. 1 ("Claim(s) rejected: 1, 3-8, 10-22."). We do
not discuss those claims further in this decision.
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a third interface configured to transport information between
the at least one frrst hardware card and the at least one second
hardware card.
Id. at 35.
REFERENCES AND REJECTIONS
The Examiner relies upon the following references:
Name Number Issued/Pub. Filed
Sun4 US 2002/0152373 Al Oct. 17, 2002 Sep. 13,2001
Kawahara US 6,522,664 B 1 Feb. 18,2003 Mar. 15, 1999
Williamson US 2004/0162919 Al Aug. 19,2004 Feb. 14,2003
Panabaker US 2007/0214276Al Sep. 13,2007 Mar. 9, 2006
Budampati US 2009/0034441 Al Feb.5,2009 Jul. 31, 2007
Takahashi US 2013/0024585 Al Jan. 24, 2013 May 25, 2012
Graham US 2013/0151849 Al Jun. 13,2013 Feb.4,2013
Asenjo US 2014/0336786 Al Nov. 13, 2014 Nov. 22, 2013
Holmberg US 2015/0055451 Al Feb.26,2015 Aug. 26,2013
Wu US 2015/0227443 Al Aug. 13, 2015 Dec. 3, 2014
The Examiner rejects the claims on the following grounds.
1. Claims 1, 3, 6-8, 10-16, 19, and 20 stand rejected as
unpatentable under 35 U.S.C. § 101 as directed to patent
ineligible subject matter. Final Act. 2--4.
2. Claims 1, 3, 8, 10, 15, and 16 standrejectedunder35 U.S.C.
§ 103(a) as rendered obvious over Holmberg, Graham,
Asenjo, and Budampati. Id. at 5-10. 5
4 All reference citations are to the frrst named inventor only.
5 On June 7, 2017, Appellants amended the claims after the fmal rejection to
cancel claims 2 and 9, to add claims 21 and 22, and to include limitations of
original claim 2 in independent claims 1, 8, and 15. See Spec. 17 (Claim 2).
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3. Claims 4 and 17 stand rejected under 35 U.S.C. § 103(a) as
rendered obvious over Holmberg, Graham, Asenjo, and
Kawahara. Id. at 11-12.
4. Claims 5 and 18 stand rejected under 35 U.S.C. § 103(a) as
rendered obvious over Holmberg, Graham, Asenjo,
Kawahara, andPanabaker. Id. at 12-13.
5. Claims 6 and 19 stand rejected under 35 U.S.C. § 103(a) as
rendered obvious over Holmberg, Graham, Asenjo, and
Williamson. Id. at 13-14.
6. Claims 7 and 20 stand rejected under 35 U.S.C. § 103(a) as
rendered obvious over Holmberg, Graham, Asenjo, Sun, and
Takahashi. Id. at 14--16.
7. Claim 11 stands rejected under 35U.S.C. § 103(a) as rendered
obvious over Holmberg, Graham, Asenjo, Budampati, and
Kawahara. Id. at 16-1 7.
8. Claim 12 stands rejected under 35 U.S.C. § 103(a) as
rendered obvious over Holmberg, Graham, Asenjo,
Budampati, Kawahara, andPanabaker. Id. at 17-18.
9. Claim 13 standsrejectedunder35U.S.C. § 103(a)asrendered
obvious over Holmberg, Graham, Asenjo, Budampati,
Kawahara, Panabaker, and Wu. Id. at 18-19.
10. Claim 14 stands rejected under 35 U.S.C. § 103(a) as
rendered obvious over Holmberg, Graham, Asenjo,
Williamson, Sun, and Takahashi. Id. at 19-21.
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BP AI 2010)
(precedential). Arguments not made are waived. See 37 C.F.R.
In particular, claim 1 was amended to replace "supervisory control network"
with "local control network (LCN)" and to recite that the second hardware
card communicates "over a redundant Ethernet network." Because the
Examiner rejected claim 2 as rendered obvious over Holmberg, Graham,
Asenjo, and Budampati, we now treat claims 1, 3, 8, 10, 15, and 16 as
rejectedoverthis combination of references. See App. Br. 22-23; Ans. 8;
Reply Br. 9.
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§ 4I.37(c)(l)(iv). Unless otherwise indicated, we adoptthe Examiner's
fmdings in the Answer as our own and add any additional fmdings of fact
appearing below for emphasis. We address the rejections below.
ANALYSIS
I. Patent Ineligible Claims
A. Section 101
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 U.S. Supreme Court has long interpreted35 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 Court's two-step framework, described in Mayo and Alice.
Id. at 217-18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566U.S. 66, 75-77(2012)). Inaccordancewiththatframework, wefrrst
determinewhatconcepttheclaim is "directedto." SeeAlice,573U.S.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 settlement
risk."); see also Bilski v. Kappas, 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 (Parkerv. Flook, 437 U.S. 584, 594--95 (1978)); and
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mental processes (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubberproducts"(Diamondv. Diehr,450U.S. 175,191
(1981)); "tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores" (id. at 183 n. 7 (quoting Corningv. Burden, 56 U.S.
252, 267---68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochranev. Deener, 94 U.S. 780, 785 (1876))).
In Di ehr, the claim at issue recited a mathematical formula, but the
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 176; 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 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 to a known structure or process may
well be deserving of patent protection.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, in which "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. at221 (quotation marks omitted). "A
claim that recites an abstract idea must include 'additional features' to
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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.
B. Office Patent EligibilUy Guidance
The Office recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019). 6 Under that guidance, we first look to whether the
claim recites:
(1) Step 2A- Prong One: 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) Step 2A- Prong Two: additional elements that integrate the
judicial exception into a practical application (see MPEP 7
§ 2106.05(a}-(c),(e}-(h)). 8
See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg.
at 54--55 ("Revised Step 2A").
6 This guidance supersedes previous guidance memoranda. See 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. at 51 ("All
USP TO personnel are, as a matter of internal agency management, expected
to follow the guidance.").
7 All Manual of Pa tent Examining Procedure ("MPEP") citations herein are
to MPEP,Rev. 08.2017, January2018.
8 We acknowledge that some of the considerations at Step 2A, Prong Two,
properly may be evaluated under Step 2 of Alice (Step 2B of the Office
guidance). For purposes of maintaining consistent treatment within the
Office, we evaluate them under Step 1 of Alice (Step 2A of the Office
guidance). See 2019 Revised Patent Subject Matter Eligibility Gui dance, 84
Fed. Reg. at 55 n.25, 27-32.
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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:
(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 id. at 56 ("Step 2B: If the Claim Is Directed to a Judicial Exception,
Evaluate Whether the Claim Provides an Inventive Concept.").
C. Statutory Categories
As an initial matter, the pending claims must be directed to at least
one of four recognized statutory categories, namely, apparatus, process,
article of manufacture, or composition of matter. MPEP § 2106(1). Here,
independent claims 1, 8, and 15 are directed to apparatus and systems, i.e.,
"machines," and methods, i.e., "processes." See 35 U.S.C. § 101. Thus, the
pending claims are directed to recognized statutory categories. See
Accenture Global Servs. GmbH v. Gui dewire Software, Inc., 728 F. 3d 1336,
1341 (Fed. Cir. 2013) ("Although CLSBankissued as a plurality opinion, in
that case a majority of the court held that system claims that closely track
method claims and are grounded by the same meaningful limitations will
generally rise and fall together" ( citation omitted).).
D. Two-Step Alice/Mayo Analysis
1. Step 2A - Prong One
Applying the frrst step of the Alice/Mayo analysis, the Examiner
concludes the pending claims are directed to the abstract idea "of sending
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and receiving" communications. Final Act. 3; Ans. 3 ("The claim is directed
to communication (e.g. sending and receiving) between hardware cards of a
network apparatus and external components")."). As the Specification
explains:
This disclosure describes techniques that decouple
hardware/platform dependency and enable the virtualization of
legacy or other devices. This is accomplished by moving the
[local control network (LCN)] or other network interface out of
a legacy or other device and installing the network interface as
an independent "network interface device." A mechanism is also
provided to establish communications between the legacy or
other device and the network interface device, such as via an
Ethernet network. In this way, communications over an LCN or
other supervisory network 106 are supported using the network
interface device, but this functionality is decoupled from the
legacy or other control device, allowing the legacy or other
control device to be virtualized.
Spec. ,r 24 ( emphases added); see Ans. 2-3. Further, the Examiner fmds that
this abstract idea is similar to abstract ideas previously identified in Electric
Power Group, LLCv. Alstom SA., 830F.3d 1350, 1353 (Fed. Cir. 2016)
("The focus of the asserted claims ... is on collecting information, analyzing
it, and displaying certain results of the collection and analysis. We need not
def me the outer limits of 'abstract idea,' or at this stage exclude the
possibility that any particular inventive means are to be found somewhere in
the claims, to conclude that these claims focus on an abstract idea-and
hence require stage-two analysis under § 101. "). Ans. 3. Appellants
disagree.
Appellants assert, "because the claims may involve, at some level,
sending and receiving does not mean that the claims are directed to that
idea." App. Br. 10. Appellants contend
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Id.
[ t ]he Examiner describes the claims at an extremely high level of
abstraction and untethered from the recitations of the claim
language, which is improper. [] It appears that the Examiner
simply summarizes all of the claims (as part of an over-
generalized characterization of the claim) into three words in an
attempt to make the claims sound abstract.
Nevertheless, the Examiner considered the limitations of the pending
claims both individually and as an ordered combination. See Final Act. 4.
Considered individually or as an ordered combination, the independent
claims recite communication between a card and a component via an
interface, between another card and a computing platform via another
interface, and yet another interface permitting communication between the
cards. See App. Br. 35, 37, 39 (Claims App.). The computingplatform
"virtualizes at least one other component of the industrial process control
and automation system," but the claims do not recite how this relates to the
recited communication paths, and the Specification explains that the
functionality of the claims is "decoupled" from the components. Id. at 35;
Spec. ,r 24. Moreover, the level of abstraction at which the Examiner
describes the invention does not change the accuracy of the Examiner's
determination. Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir.
2016) ("An abstract idea can generally be described at different levels of
abstraction."). Thus, we are persuaded that the Examiner has neither
oversimplified the interpretation of the claims nor applied too high a level of
abstraction.
We recognize that the U.S. Supreme Court has described "the concern
that drives this exclusionary principle [i.e., the exclusion of abstract ideas
from patent eligible subject matter] as one of pre-emption." See Alice, 573
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U.S. at 216. As our reviewing court has explained, however, "questions on
preemption are inherent in and resolved by the § 101 analysis." Ari osa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)
(citing Alice Corp., 573 U.S. Ct. at216). Further, "[w]hilepreemptionmay
signal patent ineligible subject matter, the absence of complete preemption
does not demonstrate patent eligibility." Id. at 1379. We are not persuaded
that a potential lack of complete preemption is dispositive here with regard
to the identification of an abstract idea.
Independent claim 15 recites the limitations of ( 1) "using" a frrst
device "to communicate" with one or more components of an industrial
process control and automation system, (2) "using" a second device "to
communicate" with a computing platform that virtualizes a component of an
industrial process control and automation system, and (3) "transporting
information," i.e., communicating, between the frrst and second devices.
App. Br. 39; see id. at35 (claim 1), 37 (claim 8). Claim 15 is broad enough
to encompass the performance of the method by a human or humans. These
limitations, under their broadest reasonable interpretation, recite the basic
human activity of communi eating, that is, sending and receiving,
information, such as would ordinarily occur in an industrial control and
automation environment. Final Act. 3 ("The claim performs the generic
steps of sending and receiving."). Such "communicating," i.e., sending and
receiving information in the context of "industrial process control and
automation," is a commercial interaction that merely manages relationships
or interactions between people, including following rules or instructions, or
both. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. at 52; see Spec. ,r,r 3--4 (Industrial process control and automation
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systems supplement or substitute for direct human control over large and
complex industrial processes.). Referringto independent claim 15, the
method of "using" first and second devices "to communicate" with other
devices and to permit communication between those devices, is similar to
the situation in which a human could achieve substantially the same
communication paths directly with or without the described devices. Final
Act. 3; see id. at 2 ("For example claims 2 and 3 merely specify the
communication networks wherein the computer components communicate
and providing remote communication into a supervisory network for a
virtual component. The use of generic computer components to transmit
information through an interface does not impose any meaningful limit on
the computer implementation of the abstract idea."); see also Ans. 2 ( quoting
Spec. ,r 24 (The recited apparatus, systems, and methods relate to
"techniques that decouple hardware/platform dependency and enable the
virtualization of legacy or other devices." ( emphases added))). Neither the
generic devices used to perform the particular communications nor the
environment in which these communications are intended to occur elevate
the recited methods ( claim 15), nor the corresponding apparatus ( claim 1) or
systems ( claim 8), having hardware "configured" to perform the methods'
steps, to more than the identified abstract idea. See Digitech Image Tech.
LLC v. Electronics for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014)
(Intended use is not sufficient to render patent eligible a claim directed to an
abstract idea.). Thus, we determine that the Examiner links the identified
abstract idea to abstract ideas previously identified by the courts and
persuasively argues that the pending claims are directed to "Certain methods
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of organizing human activity." 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. at 52.
2. Step 2A - Prong Two
Applying the second step of the Alice/Mayo analysis, the Examiner
concludes,
[ t ]he claim does not include additional elements that are
sufficient to amount to significantly more than the judicial
exception because the additional elements when considered both
individually and as an ordered combination do not amount to
significantly more than the abstract idea. The claims recite
additional limitations such as virtualization of industrial and
automation components. Based on the broadest reasonable
interpretation, virtualization ( e.g. Virtual machine) of computing
components is a well-known in the art and do not amount to
significantly more to the abstract idea of sending and receiving.
Final Act. 3. Further, the Specification explains thatthe recited components
are generic. See Spec. ,r,r 30, 40, 41, 48, 56.
Appellants contend that, like McRO, Inc. v. Bandai Nameco Games
America Inc., 837 F.3d 1299 (Fed. Cir. 2013), a "claim ... limited to a
specific process using particular information and techniques ... does not
preempt approaches that use different information or different techniques."
App. Br. 20 (emphasis added); see Reply Br. 4. InMcRO, the recited
methods involved using lip-synch techniques to improve animation,
something that human animators did not do. SeeMcRO, 837 F.3dat 1316
("Here, the structure of the limited rules reflects a specific implementation
not demonstrated as that which 'any [animator] engaged in the search for [ an
automation process] would likely have utilized'" ( citations omitted).).
Nevertheless, unlike McRO, the independent claims do not recite particular
rules for implementing the recited communication paths.
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Further, citing Enfish, LLCv. Microsoft Corp., 822 F.3d 1327 (Fed.
Cir. 2016), Appellants contend that:
Claim 1 is limited to specific hardware and a specific process to
achieve an improved technological result and does not preempt
approaches that use different hardware or different processes.
. . . Claim 1 clearly does not preempt any abstract idea. For
example, the claimed apparatus allows one to move a local
control node interface out of a legacy device or other device and
provides an independent "network interface device," which
achieves the improved technological result of decoupling
hardware/platform dependency and enabling the virtualization
of legacy or other devices.
App. Br. 11 ( emphases added); see Reply Br. 4. However, neither the
claims nor the Specification describes the components of the apparatus or
systems or those employed in carrying out the method steps operating,
individually or as an ordered combination, other than according to their
known functions. We do not find that the pending claims, like those in
Enfish, are directed to improvements in computer technology, rather than to
an abstract idea. Cf Core Wireless LicensingS.A.R.L. v. LG Elecs., Inc.,
880 F.3d 1356, 1363 (Fed. Cir. 2018) ("This language [of the Specification]
clearly indicates that the claims are directed to an improvement in the
functioning of computers, particularly those with small screens.").
Neither the claims nor the Specification states that any of the
described embodiments necessarily invokes particular hardware or software
or, as discussed above, results in improvements in computer technology or
functions. Thus, the claims rely on generic or known hardware and software
techniques, and these do not provide meaningful limitations beyond
generally linking the use of the identified abstract idea to a particular
technological environment. See MPEP § 2106. 05(h). Further, as noted
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above, the Specification explains that the disclosed apparatus, systems, and
methods strive to "decouple" the disclosed techniques from known
components. See Spec. ,r 24.
In view of Appellants' Specification, and consistent with the
Examiner's determinations, we conclude the pending claims do not recite:
(i) an improvement to the functioning of a computer;
(ii) an improvement to another technology or technical field;
(iii) an application of the abstract idea with, or by use of, a
particular machine;
(iv) a transformation or reduction of a particular article to a
different state or thing; or
( v) other meaningful limitations beyond generally linking the
use of the abstract idea to a particular technological
environment.
See MPEP §§ 2106. 05( a}-( c ), ( e }-(h). Thus, we conclude that the pending
claims do not integrate the judicial exception into a practical application.
3. Step2B
Further, as noted above, applying second step of the Alice/Mayo
analysis, the Examiner concludes, the claims do not include additional
elements that are sufficient to amount to significantly more than the judicial
exception. Final Act. 3. In particular, the Examiner fmds that:
Claims 1, 8, 15 recite, in part, an apparatus, system and
method for communicating using a frrst and second hardware
(e.g. line cards) via a frrst and second interface respectively;
wherein a third interface transport information between the frrst
and second hardware. The claim performs the generic steps of
sending and receiving. The use of generic apparatus or
computer programs to implement a method describing an
abstract concept, without significantly more, does not sufficiently
limit the claims to be patent eligible.
Id. (emphasis added); Ans. 3.
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According to the Examiner:
The claims recite additional limitations such as "first hardware
card", "second hardware card", "frrst hardware interface",
"second hardware interface", "third interface", "local control
network", "redundant Ethernet network". The addition of these
elements do not amount to significantly more to the abstract idea
Use of generic apparatus or computer programs to implement a
method describing an abstract concept, without significantly
more, does not sufficiently limit the claims to be patent eligible.
Ans. 3. Thus, the claims recite the apparatus, systems, and methods using
generic terms, e.g., interfaces and networks, and known components, e.g., an
Ethernet and a local control network (LCN) chassis.
We do not find where the Specification asserts that any of the recited
components, alone or in combination, is new or novel. On the contrary, the
Specification makes clear that the components and techniques recited in the
pending claims are well-understood, routine, and conventional. For
example, the Specification states
Each processing device 154 includes any suitable processing or
computing device, such as a microprocessor, microcontroller,
digital signal processor, field programmable gate array (FPGA),
application specific integrated circuit (ASIC), or discrete logic
devices. Each memory 156 includes any suitable storage and
retrieval device, such as a random access memory (RAM), Flash
or other read-only memory (ROM), magnetic storage device,
solid-state storage device, optical storage device, or other storage
and retrieval device.
Spec. ,r 25 ( emphases added); see id. ,r,r 30 ("In general, process control and
automation systems are highly configurable and can be configured in any
suitable manner according to particular needs." ( emphasis added)), 35 ("The
use of particular protocols and interfaces (such as LCN, K4LCN, ETNI,and
FTE interfaces) are for illustration only. Any other or additional interfaces
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can be used in or with one or more network interface devices 152 without
departi ngfrom the scope of this disclosure." ( emphasis added)) 40
( describing "standard supervisory device", "an FPGA or other suitable
structure," and "three standard slot register sets that are expected in any
standard TDC device" ( emphases added)), 41 ( describing "the WSI
subsystem of a conventional TDC personality 352"), 48 ("However, the
network interface device 152 could be implemented and used in any other
suitable manner." ( emphasis added)), 56 ("While this disclosure has
described certain embodiments and generally associated methods, alterations
and permutations of these embodiments and methods will be apparent to
those skilled in the art."). Although Appellants assert, "[ t ]hese claim
elements, when taken as an ordered combination of features recited in the
claim, provide unconventional steps that confme the alleged abstract idea to
a particular useful application" (Reply Br. 6), Appellants provide no support
for this assertion. Further, although Appellants contend that the Examiner
must show by "clear and convincing evidence" that the recited elements are
"well-understood, routine and conventional to a skilled artisan in the
relevant field," this is the standard applied in the Federal courts, not before
the Office. See Reply Br. 7 (citing Berkheimerv. HP Inc., 881 F.3d 1360
(Fed. Cir. 2018)) (emphasis omitted). We fmd the Examiner has shown the
recited elements are "well-understood, routine and conventional to a skilled
artisan in the relevant field" by a preponderance of the evidence.
Appellants do not show that the recited combinations of these few
components are in any way unconventional or non-generic (Reply Br. 5-9).
See Alice, 573 U.S. at 222 ("In holding that the process was patent ineligible,
we rejected the argument that 'implement[ing] a principle in some specific
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fashion' will 'automatically fal[l] within the patentable subject matter of
§ 101 "' (alterations in original) ( quoting Flook, 437 U.S. at 593). ).
On this record, we agree with the Examiner thatthe claims 1, 3, 6-8,
10-16, 19, and 20 are directed to an abstract idea and fail to recite
"significantly more" than the identified abstract idea. Therefore, we are not
persuaded that the Examiner erred in determining that the pending claims are
patent ineligible, and we sustain those rejections. Appellants do not argue
the eligibility of the dependent claims separately, and we find that the
dependent claims fall with their base claims. See Ans. 4---6 ( addressing the
patent eligibility of the dependent claims).
II. Obviousness
A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
between the claimed subject matter and the prior art are such that the subject
matter, as a whole, would have been obvious at the time the invention was
made to a person having ordinary skill in the art to which said subject matter
pertains. KSR!nt'l Co. v. Teleflex Inc., 550 U.S. 398,406 (2007).
A. Claims 1, 3, 8, 10, 15, and 16
The Examiner determines that independent claims 1, 8, and 15 are
rendered obvious over the combined teachings of Holmberg, Graham,
Asenjo, and Budampati. Final Act. 5-9; Ans. 6-9. In particular, the
Examiner fmds Holmberg teaches "at least one first hardware care
configured to communicate, via [a] first hardware interface," "at least one
second hardware card configured to communicate, via a second hardware
interface," and "a third interface," as recited in claim 1. Final Act. 6 ( citing
Holmberg,r,r 88, 91, Fig. 7). The Examiner acknowledges that "Holmberg
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does not disclose frrst hardware configured to communicate, via a frrst
hardware interface, over a supervisory control network with one or more
components of an industrial process control and automation system; second
hardware configured to communicate, via a second hardware interface, with
a computing platform." Id. ( emphasis added). The Examiner relies on
Graham and Budampati to teach communication between the frrst hardware
card and "one or more components of an industrial process control and
automation system" via a frrst hardware interface "over a local control
network (LCN)" and communication between the second hardware card via
a second hardware interface "over a redundant Ethernet network with a
computing platform," as recited in claim 1. Id. at6-7, 9-10; Ans. 8. In
particular, the Examiner finds that Budampati teaches "redundant gateway
infrastructure nodes 112 a-112 b" and that "[ e} ach of the gateway
infrastructure nodes 112 a-112 b processes the received data message and
forwards it over an FTE/dual Ethernet network." Final Act. 9 ( quoting
Budampati,r,r 37, 62); Ans. 8 (citing Budampati ,r,r 43, 69, Figs. 3, 4).
The Examiner fmds that a person of ordinary skill in the art would
have had reason to combine the teachings of Holmberg and Graham
"because it would have enabled to process communications for secure
operation of industrial control system field devices." Final Act. 7 ( citing
Graham ,r 28); see KSR, 550 U.S. at 420 ("Under the correct analysis, any
need or problem known in the field of endeavor at the time of invention and
addressed by the patent can provide a reason for combining the elements in
the manner claimed" ( emphasis added).). Further, the Examiner fmds that a
person of ordinary skill in the art would have had reason to combine the
teachings of Holmberg and Graham with those ofBudampati "because it
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would have enabled to provide support for use of a fault tolerant network,
such as by supporting the routing of information over one Ethernet network
when another Ethernet network fails." Final Act. 10 ( citing Budampati
,r 43); Ans. 9.
The Examiner acknowledges, however, that the combined teachings
of Holmberg and Graham do "not disclose a computing platform that
virtualizes at least one other component of the industrial process control and
automation system." Final Act. 7. Although we note that this limitation
merely describes a capability of the computing platform with which the
second hardware card communicates, the Examiner fmds that Asenjo
teaches a computing platform that "virtualizes at least one other component
of the industrial process control and automation system," as recited in claim
I. Id. (citing Asenjo ,r 40, Figs. 1, 9). Moreover, the Examiner fmds that a
person of ordinary skill in the art would have had reason to combine the
teachings of Asenjo with those of Holmberg and Graham in this manner
"because it would have enabled to use a virtualized industrial automation
system to facilitate interacting with an industrial automation system." Id. at
8 ( citing Asenjo ,r 71 ). Similar fmdings are applied to independent claims 8
and 15. Id. at 9.
Appellants contend the Examiner fails to demonstrate that combined
teachings of Holmberg, Graham, Asenjo, and Budampati render these claims
obvious for at least four reasons. Reply Br. 9-10; see App. Br. 21-24. For
the reasons set forth below, we are not persuaded by Appellants' contentions
that the Examiner erred.
First, Appellants contend the Examiner fails to demonstrate that
combined teachings of Holmberg, Graham, Asenjo, and Budampati
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"disclose or suggest a single apparatus that includes frrst and second
hardware cards that communicate over different networks, where the frrst
hardware card is configured to communicate over a local control network
(LCN) and the second hardware card is configured to communicate over a
redundant Ethernet network." App. Br. 21 ( emphasis added); Reply Br. 10.
In particular, Appellants contend, "Holmberg discloses frrst and second line
cards 92a-92b coupled to hardware 36a-36b, respectively, and a switch
fabric 128 that connects the frrst and second line cards 92a-92b. [] Holmberg
does not indicate if the line cards 92a-92b are disposed in the same device or
are parts of different devices." Id. at 22. The Examiner disagrees and
argues that Holmberg teaches "a single apparatus that includes frrst and
second hardware cards that communicate over different networks." Ans. 7
(citing Holmberg,r,r 102, 103, Figs. 7, 10). Regardless whether Holmberg
discloses that the cards and interfaces are in a single apparatus, we note that
the recitation of "an apparatus" in claim 1 and "a network interface device"
in claims 8 and 15 do not limit these claims to a "single" apparatus or
device. App. Br. 35, 37, 39 (Claims App.); see Baldwin Graphic Sys., Inc. v.
Siebert, Inc., 512 F.3d 1338, 1342--43 (Fed. Cir. 2008); Harari v. Lee, 656
F.3d 1331, 1341 (Fed. Cir. 2011). Moreover, the Specification suggests that
a "single" apparatus or device is not required to achieve the recited
apparatus, systems, or methods. See Spec. ,r 34 ("These three different
hardware interfaces can be implemented on a single [Enhanced TPS Node
Interface (ETNI)] board" ( emphasis added).). Thus, we fmd this contention
unpersuasive.
Second, Appellants contend that "Holmberg is silent as to local
control networks (LCN s) and industrial process control systems" and "while
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Holmberg generally discloses Ethernet networks, the line cards 92a-92b of
Holmberg are not cards configured to communicate over a redundant
Ethernet network." App. Br. 22. Initially, we note that the Examiner relies
on Graham and Budampati, rather than Holmberg, to teach these limitations.
Final Act. 6-7; Ans. 8-9; see Holmberg,r,r 27, 31, 43, 47 (Discussing local
area networks and Ethernet networks.). Appellants further contend that
Graham fails to teach these missing limitations. App. Br. 22. In particular,
Appellants assert
Id.
Graham does not disclose or suggest that the FD-SPP 408
connects to a second network; rather, it only connects to the
communication network 406. The FD-SPP 408 has a connection
to the field device 404, but this connection appears to be a direct
connection. Thus, Graham merely discloses a device that
connects to one kind of network, and Graham does not disclose
or suggest anything about a local control network.
The Examiner explains, however, that
Graham teaches connecting the FD-SPP 408 to the field device
404 ( computing platform). A microkernel 418 provides inter
process communication (IPC) between address space of the
[Field Device Security Pre-Processor (FD-SPP)] 408 ([Graham]
fig. 11-12, [0088], [0106], [0113]). The MTU (at the request of
a human operator) initiates a control message, the message is
encoded using SCADA protocol. The SCAD A message is then
wrapped in TCP /IP protocol for transport to the field device ( e.g
RTU) via a network that supports TCP/IP (commonly Ethernet
within a plant) ([0094]). Therefore, Graham teaches
communicating via a first hardware interface (fig. 11, SMC 91 lx
Ethernet controller registers), over a supervisory control network
with one or more components of an industrial process control and
automation system (FD-SPP[)] 408 in a communicating with the
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Master402 (MTU)via SCADA (e.g. LCN); then connecting the
FD-SPP 408 to the field device 404 ( computing platform).
Ans. 8. Further, we note that, referring to Figure 4, Graham describes the
use of "Local Control Software" in connection with "Protected Field Device
Operations." SeeGraham,r,r 12, 83. Referring to Figure 9, Graham
explains that "[t]he FD-SPP 408 is placed in front of the field device 404 by
connecting the communication network 406 to the FD-SPP 408 and then
connecting the FD-SPP 408 to the field device 404." Id. ,r 106. As depicted
in Figure 9, FD-SPP 408 stands between Master 402 and Field Device 404,
and, although FD-SPP 408 may be connected to Master 402 and Field
Device 404 via CommunicationNetwork406, "[t]he FD-SPP 408 can
support many different types of comm uni cation links," including local and
Ethernet links. Id. ,r 109 (emphasis added); see id. ,r,r 83, 88. We agree with
the Examiner regarding Graham's teachings.
Third, Appellants contend that "Asenjo is cited only for its alleged
disclosure of a computing platform that virtualizes at least one component of
an industrial process control and automation system[, and] Asenjo fails to
cure the deficiencies of Holmberg and Graham." App. Br. 23. The
Examiner does not rely on Asenjo to cure the alleged defects in the
combination Holmberg and Graham. Ans. 8 ( citing Asenjo ,r 8, Fig. 2).
Nevertheless, we are persuaded that Asenjo teaches the limitations of claims
1, 8, and 15, for which it is relied (Final Act. 7), and that a person of
ordinary skill in the art would have had reason to combine its teachings with
those of Holmberg and Graham in the manner proposed by the Examiner
(id.).
Fourth, Appellants contend that Budampati fails to teach that "at least
one second hardware card configured to communicate, via a second
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hardware interface, over a redundant Ethernet network with a computing
platform" and that a person of ordinary skill in the art would have had
reason to combine these teachings with those of Holmberg, Graham, and
Asenjo. App. Br. 23-24. In particular, Appellants contend, "Budampati
discloses an FTE network that connects gateway infrastructure nodes 112a-
112b and controllers 104a-104b. [] The Examiner fails to demonstrate that
different nodes that communicate over an FTE network disclose or suggest
anything about a second hardware interface that is different from a frrst
hardware interface." Id. at 23. However, the Examiner does not rely on
Budampati's teachings of multiple nodes, but, instead, on its teaching of a
redundant Ethernet network and the resulting fault tolerance of its network.
Final Act. 9; Ans. 8. It is these teachings that supply the missing claim
limitation and provide a reason to combine Budampati' s teachings with
those of the other references. As the Examiner explains,
Budampati teaches a single device that communicates over a
redundant Ethernet network via different interfaces. One of
ordinary skilled in the art would have been motivated because it
would have enabled to provide support for use of a fault tolerant
network, such as by supporting the routing of information over
one Ethernet network when another Ethernet network fails.
Ans. 8 ( citing Budampati ,r 43).
Thus, we are not persuaded that the Examiner erred in determining
that the combined teachings of Holmberg, Graham, Asenjo, and Budampati
render independent claims 1, 8, and 15, and dependent claims 3, 10, and 16,
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obvious, and we sustain those rejections. See Final Act. 10; Ans. 9-10; see
also App. Br. 24 (Claim 10 stands or falls with its base claim.).
B. Remaining Dependent Claims
Claims 4--7, 11-14, and 17-20 stand rejected in view of the
application of the combined teachings of Holmberg, Graham, Asenjo, and
Budampati to their base claims and the additional teachings of one or more
of Kawahara, Panabaker, Wu, Williamson, Sun, and Takahashi. We address
these rejections below.
1. Claims 4 and 17
The Examiner determines that claims 4 and 17 are rendered obvious
over the combined teachings of Holmberg, Graham, Asenjo, Budampati, and
Kawahara. Final Act. 11-12. Claim 4 recites "the at least one second
hardware card comprises slot registers configured to store data being
transferred to and from the emulated personality." App. Br. 35 (Claims
App.). Claim 17 recites similar limitations. Id. at 39. The Examiner
acknowledges that the combined teachings of Holmberg, Graham, Asenjo,
and Budampati do not teach these imitations, but asserts that Kawahara' s
teaching of"registers" teaches or suggests the recited "slot registers." Final
Act. 11 (citing Kawahara 5:55-59, 6:25-31, Figs. 4, 5).
Initially, Appellants contend that the rejections of claims 4 and 17 are
deficient ( 1) because they attempt to combine too many references in
support of the rejections of these claims (App. Br. 25) and (2) because they
are based on impermissible hindsight (id. at 26). As the Examiner correctly
observes, however, "reliance on a large number of references in a rejection
does not, without more, weigh against the obviousness of the claimed
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invention. See In re Gorman, 933 F.2d 982 ... (Fed. Cir. 1991)." Ans. 11.
Similarly, the Examiner correctly notes that
any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning. But so long as it
takes into account only knowledge which was within the level of
ordinary skill at the time the claimed invention was made, and
does not include knowledge gleaned only from the applicant's
disclosure, such a reconstruction is proper. See In re
McLaughlin, 443 F.2d 1392 ... (CCPA 1971).
Id. Thus, here, we are not persuaded that the number of references applied
by the Examiner evidences error or that the Examiner based the rejections on
impermissible hindsight. 9
Appellants further contend, "Kawahara does not characterize the
register as a 'slot register.' Thus, the register in Kawahara could be any
type of register. Kawahara is silent as to a slot register." App. Br. 26. In
response, the Examiner notes that Kawahara describes system bus 121 and
makes the unsupported assertion that "the buses comprise of slots." Ans. 12.
Even if true, the Examiner fails to show that Kawahara' s "registers" teach
the recited "slot registers." We agree with Appellants that the Examiner
fails to show that the combined teachings of Holmberg, Graham, Asenjo,
Budampati, and Kawahara render claims 4 and 17 obvious.
9 Appellants contend the Examiner combines too many references with
respect to claims 5-7 and 18-20 and the Examiner relies on impermissible
hindsight with respect to claims 5, 6, 18, and 19. See, e.g., App. Br. 27-28.
For similar reasons, we find these contentions do not demonstrate error by
the Examiner with respect to the rejections of these claims.
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2. Claims 5 and 18
The Examiner determines that claims 5 and 18 are rendered obvious
over the combined teachings of Holmberg, Graham, Asenjo, Budampati,
Kawahara, andPanabaker. Final Act. 12-13. Claim 5 recites "the at least
one second hardware card is configured to perform one or more slot
emulation tasks to support data transfer between the slot registers and the
computing platform." App. Br. 36 (Claims App.) (emphasis added). Claim
18 recites similar limitations. Id. at 40. The Examiner acknowledges that
the combined teachings of Holmberg, Graham, Asenjo, Budampati, and
Kawahara do not teach these imitations, but asserts that Panabaker teaches
the recited "slot emulation tasks." Final Act. 12 ( citing P anabaker ,r 5). In
particular, the Examiner asserts "[i]t is unclear what type of 'tasks' are being
emulated and 'data' being transfer between the registers and computing
platform. Thus, based on the broadest reasonable interpretation the claim
recites performing emulation to support data transfer between separate
computer components." Ans. 12 ( emphasis added)
Because claims 5 and 18 depend from claims 4 and 17, respectively,
the rejections of claims 5 and 18 cannot be sustained for at least the reasons
given above with respect to claims 4 and 17. Further, claim interpretation
begins with the language of the claims. As Appellants contend, because the
Examiner's interpretation of "slot emulation tasks" refers to the transfer of
data between "registers," rather than "slot registers," and a computing
platform, the interpretation is not consistent with the language of the claims.
Further, during examination of a patent application, pending claims are
given their broadest reasonable construction consistentwith the
Specification. In re Prater, 415 F.2d 1393, 1404---05 (CCPA l969);In re
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Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The
Examiner's interpretation of"slot emulation tasks," however, ignores the
Specification's discussion of the meaning of"slot emulation tasks." Spec.
We agree with Appellants that the Examiner's interpretation of "slot
emulation tasks" is overly broad. Reply Br. 12. Thus, we agree with
Appellants that the Examiner fails to show that the combined teachings of
Holmberg, Graham, Asenjo, Budampati, Kawahara, andPanabakerrender
claims 5 and 18 obvious.
3. Claims 6 and 19
The Examiner determines that claims 6 and 19 are rendered obvious
over the combined teachings of Holmberg, Graham, Asenjo, Budampati, and
Williamson. Final Act. 13-14. Claim 6 recites "the third interface
comprises a backplane of an LCN chassis configured to receive the at least
one frrst hardware card and the at least one second hardware card." App.
Br. 36 (Claims App.) (emphasis added). Claim 19 recites similar limitations.
Id. at 40. The Examiner acknowledges that the combined teachings of
Holmberg, Graham, Asenjo, andBudampatido not teach these imitations,
but asserts that Williamson teaches the recited "backplane of an LCN
chassis." Final Act. 13-14(citing Williamson ,r 13). In particular, the
Examiner asserts that Williamson discloses "[ e Jach of processing and
interface cards communicating via backplane 106 may be housed within a
conventional housing, chassis," and that a person of ordinary skill in the art
would have had reason to combine the teachings of these references. Id. at
14 ( emphasis added).
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Appellants contend, however, that Williamson describes only a
conventional chassis, rather than an LCN chassis. App. Br. 29.
Nevertheless, the Examiner relies on Graham and/or Budampati to teach the
local control network; the Examiner relies on Williamson only to teach the
chassis backplane in the context of a local control network. Final Act. 14;
Ans. 14. We are not persuaded that the Examiner erred in determining that
the combined teachings of Holmberg, Graham, Asenjo, Budampati, and
Williamson render claims 6 and 19 obvious, and we sustain those rejections.
4. Claims 7, 11-13, and 20
The Examiner determines that claims 7, 11-13, and 20 are rendered
obvious over the combined teachings of Holmberg, Graham, Asenjo, and
Budampati, in combination with those of one or more of Kawahara,
Panabaker, Wu, Williamson, Sun, and Takahashi. FinalAct. 14--21.
Appellants rely on their challenges to the base claims of these claims to
overcome these rejections. App. Br. 29-32. For the reasons given above,
we are not persuaded that the Examiner erred in determining that the
combined teachings of these references render claims 7, 11-13, and 20, or
their base claims, obvious; and we sustain those rejections.
Accordingly, on this record, we sustain the Examiner's obviousness
rejections of claims 1, 3, 6-8, 10-16, 19, and 20, but we do not sustain the
Examiner's obviousness rejections of claims 4, 5, 17, and 18.
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CONCLUSIONS
1. The Examiner did not err in rejecting claims 1, 3, 6-8, 10-16, 19, and
20 under 35 U.S.C. § 101, as directed to patent-ineligible subject
matter.
2. The Examiner did not err in rejecting claims 1, 3, 6-8, 10-16, 19, and
20 under 35 U.S.C. § 103(a), as rendered obvious over the applied
references.
3. The Examiner erred in rejecting claims 4, 5, 1 7, and 18 under
35 U.S.C. § 103(a), asrenderedobviousoverthe applied references.
4. Claims 1, 3, 6-8, 10-16, 19, and20 are not patentable.
DECISION
We affrrm the Examiner's rejections of claims 1, 3, 6-8, 10-16, 19,
and 20, and reverse the Examiner's rejections of claims 4, 5, 17, and 18.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C. F. R. § 1. 13 6( a)( 1 )(iv).
AFFIRMED-IN-PART
30