Ex Parte Hanneman et al

Patent Trial and Appeal Board

Jul 24, 2017

13473568 (P.T.A.B. Jul. 24, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/473,568 05/16/2012 Jeffrey E. Hanneman 07-0103-US-CIP2 3083
122219 7590 07/26/2017
Miller, Matthias & Hull LLP/ The Boeing Company
One North Franklin, Suite 2350
Chicago, IL 60606
EXAMINER
SPIELER, WILLIAM
ART UNIT PAPER NUMBER
2159
NOTIFICATION DATE DELIVERY MODE
07/26/2017 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):
bmatthias @ millermatthiashull. com
patentadmin @ boeing. com
mboinski @ millermatthiashull. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY E. HANNEMAN,
BRIAN WARN, and LEONARD J. QUADRACCI
Appeal 2016-006217
Application 13/473,5681
Technology Center 2100
Before JEAN R. HOMERE, JASON V. MORGAN, and
PHILLIP A. BENNETT, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 1—20. Final Act. 4—15. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
Invention
Appellants’ invention relates to the use of Autoassociative or
Heteroassociative Memory, applied to a plurality of patterns, to predict a
1 Appellants identify The Boeing Company as the real party in interest.
App. Br. 1.
Appeal 2016-006217
Application 13/473,568
possible mission outcome or future event. Abstract; Spec. 110.
Autoassociative Memory enables the recall of data using a portion of the
data to recall while Heteroassociative Memory associates “a completely
different attribute from those attributes presented as inputs.” Spec. 137.
Exemplary Claim
Exemplary claim 1 is reproduced below:
1. A method comprising:
identifying a set of mission attributes; and
using a computer to apply Autoassociative Memory to a
plurality of patterns to predict at least one of a mission outcome
and a future event that, given the set of mission attributes,
might occur during execution of a mission.
Rejections
The Examiner rejects claims 1—20 under 35 U.S.C. § 101 as being
directed to non-statutory subject matter. Final Act. 4—5.
The Examiner rejects claims 1—202 under 35 U.S.C. § 103(a) as being
unpatentable over Jan Jelinek and Datta Godbole, Model Predictive Control
of Military Operations, Procs. of the 39th IEEE Conf. of Dec. and Cont., pp.
2562—67, Sydney, Australia, Dec. 2000 (“Jelinek”) and Aparicio et al. (US
6,581,049 Bl; issued June 17, 2003). Final Act. 5—15.
2 The Examiner incorrectly omits claims 2, 3, 10—13, 16, and 17 from the
statement of the rejection. Final Act. 5. However, these claims are
addressed in the body of the rejection. Id. at 7, 9—11, and 13—14. We hold
this error harmless.
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ANALYSIS
35U.S.C.§ 101
Patent eligibility is a question of law that is reviewable de novo.
Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333 (Fed. Cir. 2012). To be
statutorily patentable, the subject matter of an invention must be a “new and
useful process, machine, manufacture, or composition of matter, or [a] new
and useful improvement thereof.” 35U.S.C. § 101. There are implicit
exceptions to the categories of patentable subject matter identified in § 101,
including: (1) laws of nature, (2) natural phenomena, and (3) abstract ideas.
Alice Corp. Pty. Ltd. v. CLS Bank Inti, 134 S. Ct. 2347, 2355 (2014). The
Supreme Court has set forth a framework for distinguishing patents with
claims directed to these implicit exceptions “from those that claim patent-
eligible applications of those concepts.” Id. (citing Mayo Collaborative
Servs. v. Prometheus Labs, Inc., 132 S. Ct. 1289 (2012)). The evaluation
follows the two-part analysis: (1) determine whether the claim is directed to
a patent-ineligible concept, e.g., an abstract idea; and (2) if a patent-
ineligible concept is present in the claim, determine whether any element, or
combination of elements, in the claim is sufficient to ensure that the claim
amounts to significantly more than the patent-ineligible concept itself. See
Alice, 134 S. Ct. at 2355.
In rejecting claims 1 and 14 under 35U.S.C. § 101, the Examiner
finds the claims are directed to the use of Autoassociative Memory to predict
a mission outcome. See Final Act. 4. Similarly, the Examiner rejects claim
10 as being “directed to the use of heteroassociative memory in detecting
new patterns.” Id.
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With respect to claim 1, Appellants contend the Examiner erred
because “[n]one of the claims recit[ed] Associative Memory per se.” App.
Br. 16. Rather, Appellants argue, “[t]he claims recite something
‘significantly more’ than Associative Memory.” Id. Specifically, “[t]hese
claims recite the use of prediction patterns and Autoassociative Memory to
predict an outcome of a mission and/or an event that occurs during the
mission.” Id. at 17. Appellants also argue “these claims recite a computer
programmed with Autoassociative Memory. Such a computer is not a
generic machine, it is a particular machine.” Id. at 18; see also Reply Br. 4
(“A computer used in conjunction with the current claims must first be
modified to support the autoassociative and heteroassociative memories and
then can be adapted to addressing the problem being solved”).
Appellants’ arguments unpersuasively fail to show that the claimed
invention is directed to something other than or significantly more than the
abstract idea of using Autoassociative Memory to predict events such as a
mission outcome. Data labels such as “mission attributes,” “mission
outcome,” and “future event” fail to transform the claimed use of input data
(i.e., mission attributes) to produce predictive output data (i.e., mission
outcome or future event) into a non-abstract concept; such prediction is akin
to, but even more abstract than, the abstract concept of risk hedging. See
Bilski v. Kappos, 561 U.S. 593, 599, 611—12 (2010). Generic recitations
such as “using a computer” fail to add anything significantly more to the
abstract idea of using an Autoassociative Memory. And, the
Autoassociative Memory itself is described in the Specification as an
abstract concept, not as a particular device or even as a general purpose
computer modified using particular algorithms. See, e.g., Spec. 56
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(“Given the set of patterns (xl, x2,. . , xi, xi+1,. ., xn), the Autoassociative
Memory uses the set of known attributes (xl, x2, . . . , xi) to complete one
of the patterns and returns (xl, x2, , xi) + (xi+1, . . . , xn)”).
For these reasons, we agree with the Examiner that claim 1 is directed
to non-statutory subject matter. Accordingly, we sustain the Examiner’s 35
U.S.C. § 101 rejection of claim 1, and claims 2—7, 9, and 14—20, which
Appellants do not argue separately. App. Br. 17—18.
Appellants make similar arguments with respect to claim 10, which is
directed to the abstract concept of “applying Heteroassociative Memory . . .
to create new patterns.” See id. at 17. These arguments are similarly
unpersuasive for the reasons discussed above. Accordingly, we also sustain
the Examiner’s 35 U.S.C. § 101 rejection of claim 10, and claims 11—13,
which Appellants do not argue separately.
Appellants further argue that claim 8—which indirectly depends from
claim 1—“is even further removed from pre-empting the use of
Autoassociative memory” because claim 8 recites post-solution activity that
“includes deciding whether to proceed with the mission, modify it, or abort
it based on the prediction.” App. Br. 18. However, we agree with the
Examiner that “making a decision in light of a prediction is what would be
expected from any prediction — indeed it is the reason why predictions are
made.” Ans. 15. Merely making a decision based on a prediction, in the
manner recited in claim 8, does not add anything significantly more to the
underlying abstract concept of using Autoassociative Memory to make a
prediction. Such decision making encompasses the human activity of
reacting to a prediction, which, like making the prediction itself, is abstract.
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Accordingly, we also sustain the Examiner’s 35 U.S.C. § 101
rejection of claim 8.
35 U.S.C. § 103(a)—Claims 19 and 14—20
In rejecting claim 1 under 35 U.S.C. § 103(a), the Examiner finds that
Jelinek’s use of “assets, lethality, and radar tracking capability” teaches or
suggests the claimed identified set of mission attributes. Final Act. 5—6
(citing Jelinek 2563). The Examiner further relies on Jelinek’s process for
determining a corrective action to take to teach or suggest predicting at least
one of a mission outcome and a future event._ Final Act. 6 (citing Jelinek
2563). The Examiner acknowledges that Jelinek does not use
Autoassociative Memory in the manner claimed, but instead relies on
Aparicio’s use of Autoassociative Memory in prediction and pattern
matching to teach or suggest using a computer to apply Autoassociative
Memory to a plurality of patterns to make the claimed prediction. Final Act.
6 (citing Aparicio col. 5,11. 13—18, 40-48); Ans. 14 (citing Aparicio col. 5,
11. 49-59).
Appellants contend the Examiner erred because the cited portions of
Aparicio neither “describe how Autoassociative Memory may be used to
predict a mission outcome, given a set of mission attributes” nor are directed
to “applying the Autoassociative Memory to a plurality of prediction
patterns.” App. Br. 12.
Appellants’ arguments are persuasive because, as Appellants correctly
note, “Jelinek relies on probability models and Monte Carlo simulations” to
make its predictions. Id.; accord Jelinek 2562. The Examiner’s findings do
not show that it would have been obvious to an ordinarily skilled artisan to
substitute Aparicio’s Autoassociative Memory for the probability models
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and Monte Carlo simulations of Jelinek. That is, the Examiner has not
shown that Aparicio’s Autoassociative Memory is itself a probabilistic
model or would have been obvious to use as a substitute for a probabilistic
model. Therefore, we agree with Appellants that the Examiner’s findings do
not show that the method of claim 1 would have been obvious in light of
Jelinek and Aparicio.
Accordingly, we do not sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of claim 1, and claims 2—9 which depend therefrom. Similarly, we
do not sustain the Examiner’s 35 U.S.C. § 103(a) rejection of claims 14—20,
which have similar recitations.
35 U.S.C. § 103(a)—Claims 10-13
Claim 10 differs from claim 1 because claim 10 applies
Heteroassociative Memory to a plurality of memory entities to create new
patterns of the attributes. However, the Examiner similarly relies on Jelinek
for the inputs and outputs of the process (i.e., historical data and the
prediction of an event or mission outcome) and on Aparicio to teach or
suggest the claimed use of Heteroassociative Memory. See Final Act. 9—10
(citing Jelinek 2563; Aparicio col. 5,1. 49—col. 6,1. 9, col. 15,11. 12—23).
Appellants contend the Examiner erred because “Jelinek doesn’t
describe any patterns, it describes the use of probability models and Monte
Carlo simulations to predict an outcome of a mission.” App. Br. 11.
Appellants contend Aparicio’s disclosure related to the “scaling of high
performance prediction and pattern matching” (Aparicio col. 5,11. 46-47)
fails to cure this deficiency in Jelinek because Aparicio “is silent about
generating patterns based on matrices of attributes . . .” (App. Br. 9
(emphasis added); see also Reply Br. 2—3).
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The Examiner finds “the scaling problem was encountered
specifically in using the prior art of Aparicio to make predictions.” Ans. 13
(emphasis added). However, the Examiner’s findings do not show that using
Heteroassociative Memory to make predictions teaches or suggests using
such memory to create new patterns. Moreover, the Examiner’s findings do
not show that it would have been obvious to an ordinarily skilled artisan to
substitute Aparicio’s Heteroassociative Memory for Jelinek’s probability
models and Monte Carlo simulations. See, e.g., Final Act. 10. Therefore,
we agree with Appellants that the Examiner’s findings do not show that the
method of claim 10 would have been obvious in light of Jelinek and
Aparicio.
Accordingly, we do not sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of claim 10, and claims 11—13, which depend therefrom.
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DECISION
We affirm the Examiner’s decision rejecting claims 1—20 as being
directed to non-statutory subject matter under 35 U.S.C. § 101. However, we
reverse the Examiner’s rejection of claims 1—20 as being unpatentable over
the combination of Jelinek and Aparicio.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner’s decision is affirmed. See
37 C.F.R. §41.50(a)(1).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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