Ex Parte Hays et al

Patent Trial and Appeal Board

Dec 19, 2018

13814563 (P.T.A.B. Dec. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/814,563 02/06/2013
32827 7590 12/21/2018
THE OLLILA LAW GROUP LLC
2569 Park Lane, Suite 202
Lafayette, CO 80026
FIRST NAMED INVENTOR
PaulJ Hays
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.
35010/364US 6391
EXAMINER
EYASSU, MARRIT
ART UNIT PAPER NUMBER
2856
NOTIFICATION DATE DELIVERY MODE
12/21/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patents@olgip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL J. HAYS and CRAIG B. McANALL Y
Appeal2018-004806
Application 13/814,563 1
Technology Center 2800
Before KAREN M. HASTINGS, JAMES C. HOUSEL, and
JEFFREY R. SNAY, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) from the
Examiner's decision rejecting claims 1-20.
We have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify the real party in interest as Micro Motion, Inc. (Appeal
Br. 5).
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Independent claim 1 below is illustrative of the subject matter on
appeal:
1. A method for validating a sensor assembly of a meter by
determining whether the sensor assembly is one of at least one
valid sensor type, the method comprising steps of:
receiving with a meter electronics one or more sensor
calibration values for the sensor assembly in communication
with the meter electronics;
comparing the received sensor calibration values to one
or more known sensor calibration values, each known sensor
calibration value corresponding to one of the at least one valid
sensor type; and
validating the sensor assembly if the one or more
received sensor calibration values are within a predetermined
tolerance of the one or more known sensor calibration values
corresponding to one of the at least one valid sensor type.
The Examiner maintains the following rejections: 2
(a) claims 1-20 under 35 U.S.C. § 101 for lack of patent eligible
subject matter;
(b) claims 1, 4--10, and 12-20 on the ground ofnonstatutory double
patenting as being unpatentable over claims 1-5, 8-15, 20-25, 28, and 29
over US 7,523,639;
(c) claims 1, 2, 4--10, and 12-20 under 35 U.S.C. § I02(b) as
anticipated by or, in the alternative, under 35 U.S.C. § I03(a) as
unpatentable over Hays (US 2007/0193334 Al, published Aug. 23, 2007)
("Hays"); and
2 We refer to the Specification, filed Feb. 6, 2013 ("Spec."); the Final Office
Action dated May 30, 2017 ("Final Act."), the Appeal Brief filed Oct. 18,
2017 ("Appeal Br."); the Examiner's Answer mailed Feb. 6, 2018 ("Ans."),
and the Reply Brief filed Apr. 5, 2018 ("Reply Br.").
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(d) claims 3 and 11 under 35 U.S.C. § I03(a) as being unpatentable
over Hays in view of Bornemann et al. (US 6,539,313 Bl, issued Mar. 25,
2003) ("Bornemann").
ANALYSIS
§ 101 Rejection
The provisions of 35 U.S.C § 101 defining the subject matter eligible
for patent protection have been held to contain an implicit exception for the
following concepts: laws of nature, natural phenomena, and abstract ideas.
Alice Corp. Pty. Ltd. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2354 (2014). "We
have described the concern that drives this exclusionary principle as one of
pre-emption." Id. (citing Bilski v. Kappas, 561 U.S. 593, 611-12 (2010)
("upholding the patent 'would pre-empt use of this approach in all fields,
and would effectively grant a monopoly over an abstract idea"')).
The first step in analyzing whether a claim is directed to patent-
eligible subject matter is determining whether the claim is directed to one of
the patent-ineligible concepts: laws of nature, natural phenomena, and
abstract ideas. Alice, 134 S. Ct. at 2355 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66 (2012)). If the claim is directed to a
patent-ineligible concept, the second step in the analysis is to determine
whether additional elements of the claim, "both individually and 'as an
ordered combination,"' "'transform the nature of the claim' into a patent-
eligible application." Alice, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at
77, 79).
We treat claim 1 as illustrative of the issues on appeal for the § 101
rejection. With regard to step one, the Examiner finds the claimed invention
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is directed to abstract ideas (Final Act. 10). Specifically, the Examiner finds
the invention is directed to mental processes because the receipt of sensor
calibration values, comparison of received sensor calibration values to
known sensor calibration values, and validation of a sensor assembly if the
received value is within a predetermined tolerance for a known calibration
value, as recited in claim 1, can be carried out mentally ( Ans. 4 ).
Appellants argue the Examiner has not made a prima facie case
because the Examiner's citations to Grams and Myriad (Final Act. 11; Ans.
10-11) do not explain how those inventions correspond to Appellants'
inventions (Appeal Br. 15-16; Reply Br. 2-3).
To study this issue, we tum to the claim recitations and analyze
whether they are directed to mental processes. The recitation of "receiving
with a meter electronics one or more sensor calibration values for the sensor
assembly in communication with the meter electronics" can be performed by
a person instead of meter electronics, such as by a user reading the
calibration value for a sensor assembly from a source, such as a display or
hardcopy listing the calibration value for a particular sensor. Similarly, the
recitation of "comparing the received sensor calibration values to one or
more known sensor calibration values, each known sensor calibration value
corresponding to one of the at least one valid sensor type" is a step that can
be performed by a person mentally comparing the read sensor calibration
value to those in a list of calibration values for known sensors.
Comparisons to case law also supports the Examiner's determination.
Despite differences in technology, the Examiner's citations to Grams and
Myriad are appropriate to support the proposition that a mental process is a
patent-ineligible concept. The Federal Circuit has held that if a method can
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be performed by human thought alone, or by a human using pen and paper,
it is merely an abstract idea and is not patent-eligible under § 101
(CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir.
2011) ("[A] method that can be performed by human thought alone is
merely an abstract idea and is not patent-eligible under§ 101")).
SmartGene, Inc. v. Advanced Biological Labs., SA, 555 Fed. App'x 950
(Fed. Cir. 2014) also serves as an example of a claim that was directed to a
mental process. In SmartGene, the Federal Circuit determined a claim was
directed to a process that could be performed without a computer and did not
include any steps beyond those that doctors routinely and consciously
perform (id. at 955). The claim in SmartGene involved providing patient
information to a computing device, which is similar to the "receiving" step
of claim 1, and generating a ranked listing of available treatment regimens
for the patient, which correlates with the "comparing" step of claim 1 and
appears to correlate with the "validating" step as well (id. at 951-52).
To further analyze the limitation "validating the sensor assembly if the
one or more received sensor calibration values are within a predetermined
tolerance of the one or more known sensor calibration values corresponding
to one of the at least one valid sensor type," we tum to the Specification to
determine the meaning of the terms "validating" and "valid sensor type."
The Specification states validation of a sensor type occurs "by
comparing one or more received calibration values to known calibration
values" and states "[ f]or example, the sensor may comprise an invalid sensor
type if it is manufactured by a different company" (Spec. 3 :27-31 ). The
Specification further discloses "[ a ]ccording to an embodiment of the
invention, if the meter electronics 20 determines the sensor is invalid, the
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meter electronics 20 may be prevented from operating with the sensor 1 O"
(id. at 12:3-5) and "[a]ccording to an embodiment of the invention, the
meter electronics can utilize the reproduction capabilities of a particular
manufacturer in order to exclude sensors as invalid with calibration values
that exceed a predetermined tolerance from stored calibration values, and
presumably are made from a different manufacturer" (id. at 12:20-23).
However, the Specification also states "[t]he sensor validation system and
method according to the present invention differs from the prior art in that
the sensor calibration values are used not only to identify the sensor type,
but to validate the sensor type as an acceptable sensor to be used with the
meter electronics" (id. at 14:23-26).
In view of the above, although the Specification discloses examples
and embodiments in which the validation step determines whether a sensor
is made by a different company, which means a "valid sensor type" would
be a manufacturer's own sensors in such a situation, this is insufficient to
demonstrate an intent to limit the validation step and "valid sensor type" to
only the sensors of a particular manufacturer. 3 As noted above, the
Specification also describes validation as simply determining whether a
sensor's calibration data matches that of "known calibration values" (i.e.,
matching the calibration value to that of a known sensor) and that validation
determines the sensor type "as an acceptable sensor to be used with the
meter electronics." Thus, the validation step of claim 1 includes simply
determining a sensor is a known sensor that is acceptable for use with meter
3 In any event, even if the validation step were limited to determining if the
sensor is one made by a particular manufacturer, such a step would still be a
mental process because this can be done by a person.
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electronics. Therefore, we agree that the step of "validation" is directed to a
mental process, which is a patent-ineligible concept.
Because claim 1 is directed to abstract ideas, we analyze claim 1
under step two of Alice to determine if there are additional limitations that
individually, or as an ordered combination, ensure the claim amounts to
"significantly more" than the abstract idea. Alice, 134 S. Ct. at 2355
( citing Mayo, 566 U.S. at 72-73, 77-79).
The Examiner the finds the additional elements recited in claim 1 are
generic and simply used to carry out the abstract ideas and, therefore, do not
add significantly more (Final Act. 10-11; Ans. 4). Citing various cases for
support, Appellants contend claim 1 is directed to a specific improvement in
the technical field of meters by identifying counterfeit sensor assemblies,
which addresses the problem of those sensor assemblies being used with a
manufacturer's meter electronics (Appeal Br. 9-14). Appellants assert the
use of such "knock-off' sensor assemblies results in a meter not performing
according to standards and this weakens the manufacturer's brand name
recognition (id.).
To address claim 1 under step two, we consider the claim that was
analyzed in Mayo. In Mayo, the Supreme Court stated that a claim directed
to a method of optimizing the therapeutic efficiency for a treatment of an
immune-mediated gastrointestinal disorder, which included the steps of
administering a type of drug to a subject and determining the level of a
metabolite in the subject due to the administration of the drug, wherein a
certain level indicated an increased amount of the drug was needed and a
certain level indicated a decreased amount of the drug was needed, added
nothing more to the laws of nature already present when the limitations were
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considered separately and as an ordered combination. Mayo, 566 U.S. at
73-75, 79. The Supreme Court stated the problem another way; the claim
simply told a doctor to measure a metabolite level and consider a resulting
measurement in light of correlations between the metabolite and an
administered drug, which would "tie up the doctor's subsequent treatment
decision whether that treatment does, or does not, change in light of the
inference he has drawn using the correlations." Id. at 86-87.
Here, claim 1 does not require any action beyond "validating" the
sensor assembly based upon "comparing" its calibration value to those of
valid sensor types. As discussed above, "validating" includes simply
determining a sensor assembly is acceptable for use with meter electronics.
Such an operation does not necessarily exclude the use of sensors made by
various manufacturers, such as so-called "knock-off' sensors; no action is
required even if the sensor calibration value for a sensor assembly does not
match known sensor calibration values. Thus, claim 1 presents a similar
problem as the claim in Mayo because claim 1 ties up any action or decision
subsequent to the validation step, which can be simply determining whether
a sensor is acceptable for use with meter electronics. As a result, claim 1 is
not directed to the specific improvement that addresses a problem, as
asserted by Appellants. Stated differently, claim 1 is not focused on a
specific method that improves the relevant technology but instead merely
invoke generic processes to carry out abstract ideas. The additional
recitations of claim 1, when considered individually and as an ordered
combination, do not add significantly more to the mental steps of receiving
calibration values for a sensor assembly, comparing the values to those for
valid sensor types, and validating the sensor assembly, as recited in claim 1.
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Appellants further contend claim 1 is tied to or necessarily rooted in
the technology of meters (Appeal Br. 14--15). This argument is also
unpersuasive. The Supreme Court has stated the "prohibition against
patenting abstract ideas 'cannot be circumvented by attempting to limit the
use of [the abstract idea] to a particular technological environment"' (Bilski,
561 U.S. at 610-611 (quoting Diamond v. Diehr, 450 U.S. 175, 191-92
(1981))). To the extent Appellants refer to the result in DDR Holdings
(Appeal Br. 10), the argument is unpersuasive because, as discussed above,
claim 1 is not particularly drawn to the problem and improvement asserted
by Appellants. Nor does claim 1 result in an improvement to overcome a
problem for computer networks, as in DDR Holdings.
Appellants also argue claim 1 is patent eligible because it does not
preempt all possible methods of validating a sensor assembly, citing McRO,
Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016)
for support (Appeal Br. 10, 12). These arguments are also unpersuasive.
When discussing exceptions to patent eligibility under § 101, the Supreme
Court has stated "the concern that drives this exclusionary principle as one
of pre-emption" (Alice, 134 S. Ct. at 2354). However, characterizing
preemption as a driving concern for patent eligibility is not the same
as characterizing preemption as the test for patent eligibility. As our
reviewing court has explained, "[t]he Supreme Court has made clear that the
principle of preemption is the basis for the judicial exceptions to
patentability" and "[ fJor this reason, questions on preemption are inherent in
and resolved by the § 101 analysis" (Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (citing Alice, 134 S. Ct. at 2354)).
Thus, "[ w ]hile preemption may signal patent ineligible subject matter,
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the absence of complete preemption does not demonstrate patent
eligibility" (id.). Furthermore, in McRO the Federal Circuit stated one
should look to whether the claims "focus on a specific means or method that
improves the relevant technology or are instead directed to a result or effect
that itself is the abstract idea and merely invoke generic processes and
machinery" (McRO, 837 F.3d at 1314). The Federal Circuit determined "the
claims are limited to rules with specific characteristics" and "[ t ]he specific,
claimed features of these rules allow for the improvement realized by the
invention." Id. at 1313-14. As discussed above, claim 1 invokes generic
operations directed to mental processes and is not focused on the specific
improvement to meter technology asserted by Appellants.
Appellants do not argue claims 2, 4--10, and 12-20 separately from
claim 1 (Appeal Br. 9-16). Therefore, for these reasons and those set forth
in the Examiner's Answer, we sustain the Examiner's§ 101 rejection of
claims 1, 2, 4--10, and 12-20.
Claim 3 depends from claim 1 and recites "further comprising a step
of preventing the meter electronics of the meter in communication with the
sensor assembly from operating with the sensor assembly if the sensor
assembly is invalid." Claim 11 is an apparatus claim that includes
corresponding recitations. Unlike claims 2, 4--10, and 12-20, the recitations
of claims 3 and 11 add significantly more to the abstract ideas described
above by providing a specific improvement to a problem occurring for a
technological process; preventing use of a sensor assembly if it is found
invalid ( e.g., is a "knock-off' sensor assembly or is otherwise not a known
sensor that is acceptable for use with meter electronics) (see Appeal Br. 11-
14). As stated by the Examiner, the "preventing" operation "is a real step
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which is more than the abstract idea" (Final Act. 11 ). For these reasons, we
do not sustain the Examiner's§ 101 rejection of claims 3 and 11.
We do not reach the same result for independent claim 17, which
recites, among other things, "permitting the operation of the meter if the one
or more received sensor calibration values are within a predetermined
tolerance of the one or more known sensor calibration values." This
recitation does not prevent usage of a "knock-off' sensor assembly that
could cause poor meter performance and detrimental effects for a company's
brand. The "permitting" recitation simply allows a sensor assembly found to
be acceptable for use with meter electronics to be used for that purpose.
Therefore, claim 1 7 is also is not focused on the improvement to meter
technology asserted by Appellants.
Claims 2 and 10 recite invalidation of a sensor assembly when the
sensor assembly's calibration value does not fall within the tolerances for
known sensor calibration values. In other words, claims 2 and 10 recite the
negative outcome when determining whether a sensor assembly is a known
sensor assembly acceptable for use with meter electronics while claim 1
recites the positive outcome (i.e., the calibration value for a sensor assembly
matches that of a known sensor calibration value). Like claim 1, claims 2
and 10 are not focused on the Appellants' asserted improvement because no
action is required beyond determining a sensor assembly is not a "valid
sensor type" and nothing is significantly added to the mental process of
making this determination.
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Double Patenting Rejection
Claims 1, 4--10, and 12-20 are rejected on the ground ofnonstatutory
double patenting as being unpatentable over claims 1-5, 8-15, 20-25, 28,
and 29 over US 7,523,639.
As stated by the Examiner (Ans. 28), Appellants do not present
arguments for this rejection. Therefore, we summarily affirm the
Examiner's non-statutory obviousness-type double patenting rejection of
claims 1, 4--10, and 12-20.
§ § 102 I 103 Rejection
Claims 1, 2, 4--10, and 12-20 are rejected under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
unpatentable over Hays.
Appellants present separate arguments for claims 1 and 9, claims 2
and 10, and claim 17 (Appeal Br. 17-27). Claims 4--8 and 12-16 depend
from claims 1 and 9. Claims 18-20 depend from claim 1 7. Therefore, we
address claims 1, 4--9, and 12-16 as a first group, claims 2 and 10 as a
second group, and claims 17-20 as a third group. For purposes of appeal,
we select claim 1 as representative of the issues for the first group, claim 2
as representative of the issues for the second group, and claim 1 7 as
representative of the issues for the third group.
Claims 1, 4--9, and 12-16
Appellants' principle arguments on appeal for claims 1 and 9 are that
Hays discloses identifying a meter type based upon calibration values
received, not validating a sensor assembly, as recited in claim 1 and it would
not have been obvious to modify Hays to make the validation of claim 1
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(Appeal Br. 17-21 ).
Appellants' arguments are unpersuasive. The Examiner finds Hays
discloses a method including receiving calibration values for a sensor
assembly, comparing the received calibration values to one or more known
calibration values, and validating the sensor assembly when the received
calibration value is within a predetermined tolerance of one or more known
sensor calibration values (Final Act. 14--15).
The disclosure of Hays supports the Examiner's findings. Hays
discloses a flow meter monitoring system including a processing system
configured to receive meter calibration values and correlate the meter
calibration values to known meter calibration values to determine a flow
meter type (Hays ,r,r 15, 30, 39, 42). As discussed above with regard to the
§ 101 rejection, the "validating" step of claim 1 encompasses determining
whether a sensor assembly is acceptable for use with meter electronics. As
recited in claim 1, this is accomplished by comparing the sensor assembly's
calibration value to known sensor calibration values. Thus, although Hays is
concerned with determining a flow meter type based upon comparing a
received calibration value for a sensor assembly and comparing the value to
those for known meter calibration values to determine a type, such an
operation is encompassed by the scope of claim 1.
Appellants further assert Hays does not disclose or suggest validating
whether a sensor validation value is within a predetermined tolerance of one
or more known sensor calibration values, as recited in claim 1, because Hays
does not mention a predetermined tolerance for known sensor calibration
values (Appeal Br. 19). This argument is also unpersuasive. The Examiner
finds there would be a predetermined tolerance when making the
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comparison disclosed by Hays (Ans. 13-14). In fact, Hays discloses
tolerances for calibration values in Figure 2 (Hays ,r 40), which depicts
ranges for various calibration values. We note that Figure 2 of Hays is
similar to Figure 3 of Appellants' disclosure, which depicts exemplary
tolerances for calibration values (Spec. 11: 14--30). Appellants do not
respond to the Examiner's finding and explanation.
In view of the above, a preponderance of the evidence in the record
supports the Examiner's§§ 102/103 rejection of claim 1. We sustain the
rejection of claim 9 for the same reasons discussed above.
Appellants do not argue claims 4--8 and 12-16 separately from claims
1 and 9 (Appeal Br. 27).
Claims 2 and 10
Claim 2 depends from claim 1 and recites "further comprising a step
of invalidating the sensor assembly if the one or more received sensor
calibration values exceed the known sensor calibration values by more than
the predetermined tolerance." Claim 10 depends from claim 9 and includes
similar recitations.
The Examiner finds Hays discloses the invalidating step of claims 2
and 10 because Hays discloses informing a user if there is an error (Final
Act. 20). Appellants assert the arguments discussed above for claims 1 and
9 and further contend Hays does not disclose the "invalidating" step because
Hays only discloses a non-match when there is a user entry error (Appeal Br.
21-24).
Appellants' arguments are unpersuasive. Hays's disclosure supports
the Examiner's finding because Hays discloses its system "can inform a user
of an entry error in the FCF or Kl values if the determined flow meter type
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differs from an expected flow meter type" (Hays ,r 46). In other words,
Hays discloses the determination of a sensor assembly not matching an
expected (i.e., known) type.
Claim 1 is directed to a positive result when determining whether a
sensor assembly matches valid sensor types. Claims 2 and 10 are directed to
the opposite outcome; when a match between a sensor assembly and valid
sensor types is negative. Such an operation encompasses determining a
sensor assembly differs from an expected type, as disclosed by Hays. As a
result, a preponderance of the evidence in the record supports the
Examiner's rejection of claims 2 and 10.
Claims 1 7-20
Independent claim 17 recites, among other things, receiving one or
more calibration values for a sensor assembly, retrieving one or more known
sensor calibration values, comparing the received sensor calibration values
with the known sensor calibration values, and "permitting the operation of
the meter if the one or more received sensor calibration values are within a
predetermined tolerance of the one or more known sensor calibration
values."
The Examiner finds Hays discloses the "permitting" step of claim 1 7
or it would have been obvious to perform such a step (Final Act. 19-20).
Appellants contend Hays is silent with regard to the "permitting" step and
only identifies a meter assembly without permitting its operation and such a
step would not have been obvious over Hays (Appeal Br. 24--27).
We agree with the Examiner that Hays anticipates claim 1 7, including
the "permitting" step. In assessing the propriety of an anticipation rejection,
"it is proper to take into account not only specific teachings of the reference
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but also the inferences which one skilled in the art would reasonably be
expected to draw therefrom" (In re Preda, 401 F.2d 825, 826 (CCPA 1968)).
Here, although Hays is silent with regard to the "permitting" step of claim
17, Hays' disclosure infers that a sensor assembly matching that of a known
type would be permitted for use. The disclosure of Hays provides no
indication that a sensor assembly matching a known type would be
prevented from use. Indeed, one could have inferred from Hays's disclosure
of an error message for an assembly that doesn't match an expected type
(Hays ,r 46) that Hays' s system would permit the use of an expected type of
assembly because Hays does not disclose any message or problem when a
match with an expected assembly type is determined.
In view of the above, a preponderance of the evidence in the record
supports the Examiner's § § 102/103 rejection of claim 17. Appellants do
not argue claims 18-20 separately from claim 17 (Appeal Br. 27).
For the reasons discussed above and those set forth in the Examiner's
Answer, we sustain the Examiner's§§ 102/103 rejection of claims 1, 2, 4--
10, and 12-20.
§ 103 Rejection
Claims 3 and 11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hays in view of Bornemann.
Appellants do not argue claims 3 and 11 separately from claims 1 and
9 (Appeal Br. 28). As discussed above, Appellants' arguments do not
identify a reversible error in the rejection of claims 1 and 9. Therefore, we
sustain the§ 103(a) rejection of claims 3 and 11.
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DECISION
The Examiner's rejection of claims 1-20 is 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)(l )(iv).
AFFIRMED
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