Ex Parte Ikeda

Patent Trial and Appeal Board

Feb 12, 2018

12408127 (P.T.A.B. Feb. 12, 2018)

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
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11333/271 8653
EXAMINER
NEGIN, RUSSELL SCOTT
ART UNIT PAPER NUMBER
1631
MAIL DATE DELIVERY MODE
12/408,127 03/20/2009
7590757
BGL
P.O. BOX 10395
CHICAGO, IL 60610
Yutaka Ikeda
02/12/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YUTAKAIKEDA
Appeal 2017-000224
Application 12/408,127
Technology Center 1600
Before RYAN H. FLAX, TIMOTHY G. MAJORS, and
RACHEL H. TOWNSEND Administrative Patent Judges.
MAJORS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 submits this appeal under 35 U.S.C. § 134(a) involving
claims reciting a sample analyzer and computer program for analyzing a
sample containing a plurality of kinds of particles. The Examiner rejected
the claims for lack of patent-eligible subject matter, and for obviousness-
type double patenting. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies the Real Party in Interest as SYSMEX
CORPORATION. App. Br. (Mar. 8, 2016) 2.
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Application 12/408,127
STATEMENT OF THE CASE
According to the Specification, a conventional “blood analyzer . . .
pre-stores analysis conditions corresponding to animal species in memory,
and reanalyzes a sample by changing the settings to the correct animal type
. . . when the sample has been analyzed using incorrect analysis conditions.”
Spec. 13. That is, such a “blood analyzer changes the setting range of the
fraction level in accordance with the type of animal.” Id. But, regarding
such analyzers, the Specification states, “analysis programs for setting the
fractionation level must be developed in accordance with the number of
animal species,” and these “programs can only be developed at great cost
and time.” Id. 14.
Claims 1 and 3—20 are on appeal. Claim 12 is illustrative:
12. A sample analyzer for analyzing a sample containing a
plurality of kinds of particles, comprising:
a measuring device for measuring the sample to obtain
first quantization information representing characteristics of the
particles in the sample, the first quantization information being
quantized to a predetermined number of bits;
a processor; and
a memory storing a classification condition to be used for
classifying the particles in the sample into a plurality of kinds of
particles, and programs executable by the processor for:
obtaining second quantization information by
expanding or compressing the obtained first quantization
information by a predetermined scale factor, the second
quantization information being quantized to the predetermined
number of bits; and
classifying the particles in the sample into a
plurality of kinds of particles based on the classification
condition and one of the first quantization information and the
second quantization information.
App. Br. 17 (Claims App.).
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The claims stand rejected2 by the Examiner as follows:
I. Claims 1 and 3—20 under 35 U.S.C. § 101 for claiming patent-
ineligible subject matter.
II. Claims 12, 18, and 20 provisionally for non-statutory
obviousness-type double patenting over claims 1,19, and 22 of
US Application No. 12/408,149 (“the ’149 Appl.”)3 Final Act.
(Sept. 8,2015) 15.
DISCUSSION
In analyzing patent eligibility under 35 U.S.C. § 101, the Supreme
Court has set forth a “framework for distinguishing patents that claim
[patent-ineligible] laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts.” Alice
Corp. Pty. Ltd. v. CLSBankInt’l, 134 S. Ct. 2347, 2355 (2014) (citation
omitted). According to that framework, first “we determine whether the
claims at issue are directed to one of those patent-ineligible concepts.” Id.
“If so, we then ask, ‘[w]hat else is there in the claims before us?’” Id.
(quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct.
1289, 1297 (2012).) To answer this second question,
we consider the elements of each claim both individually and as
an ordered combination to determine whether the additional
elements transform the nature of the claim into a patent-eligible
application. [The Supreme Court has] described step two of this
analysis as a search for an inventive concept — i.e., an element
or combination of elements that is sufficient to ensure that the
2 The Examiner withdrew rejections under 35 U.S.C. § 103(a), and also for
double-patenting, directed to claims 1,3, and 4. Ans. 3.
3 Based on USPTO records, this application was abandoned on Oct. 5, 2017.
The provisional double-patenting rejections are, thus, dismissed as moot.
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Application 12/408,127
patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself.
Id. (internal citations and quotation marks omitted).
The Examiner rejected claims 1 and 3—20 under § 101. Final Act. 2—
3. Appellant argues the patentability of the claims rejected under § 101 as a
group. App. Br. 4—8. We choose independent claim 12 as representative of
the other claims on appeal. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that claim 12 is “directed to the abstract idea of
an algorithm for classifying and scaling quantization data.” Final Act. 2—3.
The Examiner explains that “the claims encompass manipulating data by
classifying the data into different kinds of particles through expanding and
compressing the quantization information by scaling factors.” Id. at 3.
These “mathematical manipulations and relationships are,” according to the
Examiner, an abstract idea in accordance with Supreme Court precedents.
Ans. 3.4 The Examiner further finds, inter alia, that classifying particles in a
sample, generating first and second classification data (as in claim 1),
mathematical relationships relating to the number of bits in the data, and
preparing distribution diagrams (as in claim 20), are simply more abstract
limitations appearing in the claims. Id. at 3—5; see also Id. at 4 (“The
combination of the limitations executed by the sample analyzer are a
combination of judicial exceptions.”).
The Examiner also finds claim 12 does not recite “significantly more”
than the abstract idea, but instead merely “recite[s] executing the algorithm
on a sampling analyzer and a measuring device.” Final Act. 3; see also Ans.
4 Examiner’s Answer dated Aug. 11, 2016.
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5 (“the only limitation [in] addition to the judicial exceptions is measuring
the sample.”). According to the Examiner, “measuring samples and
conducting calculations on processors are routine and conventional in the
prior art.” Ans. 3. The Examiner, thus, concludes that claim 12 is patent
ineligible under § 101.
We agree with the Examiner that claim 12 is directed to an abstract
idea without “significantly more” in accordance with the Alice!Mayo
framework. We explain further below.
At step one of the analysis, we ask whether claim 12 is directed to
patent ineligible subject matter. Because all inventions, at some level,
embody or apply laws of nature, abstract ideas, etc., “we tread carefully in
construing this exclusionary principle lest it swallow all of patent law.”
Alice, 134 S.Ct. at 2354.
Broadly speaking, claim 12 relates to a device for collecting,
manipulating, and classifying data. Heeding the Supreme Court’s caution
against overgeneralizing the claims at step one, however, we look closer.
Claim 12 recites a sample analyzer comprising a measuring device, memory,
and a processor. Those limitations, while not abstract, are, nevertheless, just
generically recited implements for gathering data and storing it, as well as
for computing the data using the abstract idea (i.e., a program/mathematical
algorithm). Ans. 2; Spec. ^fl[ 2—3. In other words, the system elements are
merely generic components grafted onto an otherwise patent-ineligible
subject matter (the programs/mathematical algorithms to process the data).
We agree with the Examiner that claim 12 is directed to an algorithm for
scaling and classifying sample data. Final Act. 2—3. This is an abstract
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idea.5 The algorithm manipulates data (quantization information) related to
particle “characteristics” to create additional data (second quantization
information). App. Br. 17. See Digitech Image Techs. LLC v. Elecs. For
Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014) (“Without additional
limitations, a process that employs mathematical algorithms to manipulate
existing information to generate additional information is not patent
eligible.”). The data manipulation — expanding or compressing data by a
scale factor — is itself generalized and abstract.6 So too is claim 12’s final
“classifying” clause, which requires classifying particles based on a vague
“classification condition” and first or second “quantization information.”
These features of the algorithm fail to make the abstract idea less abstract.
RecogniCorp, LLC v. Nintendo Co., Ltd., 855 F.3d 1322, 1327 (Fed. Cir.
2017) (“Adding one abstract idea (math) to another abstract idea (encoding
and decoding) does not render the claim non-abstract.”).
Having agreed with the Examiner that claim 1 is directed to an
abstract idea, we proceed to step two of the Alice/Mayo framework. We
5 “[W]e continue to treat[] analyzing information by steps people could go
through in their minds, or by mathematical algorithms, without more, as
essentially mental processes within the abstract-idea category.” Synopsis,
Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1146-47 (Fed. Cir. 2016)
(internal quotation marks and citation omitted). Restricting the claims to a
technological environment or field of use “do[es] not make an abstract
concept any less abstract under step one.” Intellectual Ventures I LLC v.
Capital One Financial Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017) (holding
that claims to a system for editing XML documents was ineligible as being
directed to collecting, displaying, and manipulating data).
6 The Specification describes multiplying 12-bit integer sequence
information by 1.2, then compressing to an 8-bit integer sequence. See, e.g.,
Spec. 1 54.
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have searched for “something more” in claim 12 that transforms the claim
into a patent-eligible application of an abstract idea but, like the Examiner,
we find that this is missing. As explained above, claim 12 recites generic
components and generalized, abstract operations executed as part of an
algorithm. Abstractions such as these do not demonstrate a specific and
concrete implementation of the abstract idea of scaling and classifying
sample data (quantization information). RecogniCorp, 855 F.3d at 1328
(“The addition of a mathematical equation that simply changes the data into
other forms of data cannot save [claim 1]”). Even if, as the Examiner
determined, the algorithm recited in claim 12 uses a “different” (i.e., new)
technique, that technique does not necessarily impart patent eligibility. Ans.
5—6. To the extent there is any new subject matter in claim 12, it appears to
be wholly in an abstract algorithm/program. Section § 101 demands more.
Parker v. Flook, 437 U.S. 584, 588 (1978) (“[W]e assume that respondent’s
[abstract] formula is novel and useful and that he discovered it.”); see also
Synopsis, 839 F.3d at 1151 (holding that “a claim for a new abstract idea is
still an abstract idea.”).
We have considered all the limitations of claim 12, individually and in
combination, and agree with the Examiner that they fail to provide a
sufficient inventive concept. The claim’s preamble recites a “sample
analyzer for analyzing a sample containing a plurality of kinds of particles.”
App. Br. 17. Yet the only structure required is a “measuring device,” and a
“memory” and “processor” for storing data and executing a program.
Absent evidence to the contrary, we are persuaded the recited “measuring
device,” “memory,” and “processor” simply provide routine data collection
and generic computer functionality (e.g., conducting calculations). Ans. 3.
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Although reciting a generic computer implementation does not necessarily
doom the claims, neither does it necessarily save them from abstraction.
Alice, 134 S.Ct. at 2359-60. Those recitations do not save the claims here,
because they are generic components arranged in a generic way to be used
for their conventional functions. Nor does claim 12 specify the source or
type of the samples, particles, or particle “characteristics” that are converted
into data for classification. Measuring to obtain data on some unspecified
“characteristic” of an unspecified “particle” in an unspecified “sample” is
just data gathering. These limitations, at the level of generality recited,
along with those limitations on the operation of the program/algorithm do
not ensure that claim 12 amounts to significantly more than a patent on the
ineligible subject matter itself.
Appellant argues the Examiner “fails to provide any support or
argument on why the claims are directed to an abstract idea.” App. Br. 5.
Further, Appellant contends, the Examiner fails to consider the claims as a
whole. Id. According to Appellant,
The claims are significantly more than a mere algorithm and
recite measuring a sample to obtain quantization information
representing characteristics of the particles and then providing a
detailed analysis of the particles. The analysis includes multiple
classification data/information that is scaled/expanded/
compressed.
Id.1
1 In the Reply Brief, Appellant alleges “the Answer never identifies which
judicial exception ... is being alleged here.” Reply Br. 2. This allegation is,
however, unpersuasive. It is clear the Examiner finds claim 12 is directed to
an abstract idea. See, e.g., Final Act. 2—3; see also Ans. 3^4; App. Br. 4—5
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Appellant’s argument is unpersuasive. The Examiner made a prima
facie showing that claim 12 is directed to a patent-ineligible abstract idea.
As explained above, the Examiner found that the claim is directed to “the
abstract idea of an algorithm for classifying and scaling quantization data.”
Final Act. 2—3. As the Examiner explains, the operations of the algorithm
are just a series of abstractions (e.g., mathematical manipulations and
relationships) that do not provide a non-abstract inventive concept. Also, we
are unpersuaded the Examiner failed to consider the claims as a whole. The
Examiner simply found the remaining claim elements, such as measuring
samples with a measuring device, involved routine data collection and
processing. Final Act. 3; Ans. 2. Appellant fails to provide persuasive
evidence otherwise. Appellant points out that the claim requires measuring
a sample to obtain data (quantization information), but does not show that
this element of the claim is unconventional. And the alleged “detailed
analysis” of the sample that Appellant emphasizes (App. Br. 5) is simply the
application of the algorithm, which is not the “something more” required to
transform an abstract idea. Alice, 134 S. Ct. at 2357 (“The transformation of
an abstract idea into patent-eligible subject matter ‘requires more than
simply stat[ing] the [abstract idea] while adding the words ‘apply it.””
(quoting Mayo, 132 S. Ct. at 1294)). Appellant’s further emphasis on the
broad manipulations (scaling/expanding/compressing) of the data incident to
the “analysis” does not change the result. App. Br. 5.
(acknowledging the Examiner’s finding that the claims are directed to an
abstract idea).
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Appellant cites the USPTO’s subject matter eligibility guidance,
specifically Example 23 of the July 2015 Update, which Appellant contends
supports the patentability of claim 12.8 App. Br. 5; Reply Br. 3. The cited
example relates to a hypothetical graphical user interface (GUI) that
dynamically relocates obscured textual information (i.e., when the
boundaries of one window overlap a portion of another window) by re­
formatting and moving the obscured textual information to an unobscured
portion of the window so it can be viewed by the user. Update 7. In the
example, “[t]he textual information is scaled based upon a scaling factor that
is calculated using a mathematical algorithm.” Id. Appellant focuses on
hypothetical claims 1 and 4 of the example, which Appellant contends are
analogous to the pending claims.
We are unpersuaded. Hypothetical claim 1 of Example 23 is
reproduced below:
1. A computer-implemented method for dynamically
relocating textual information within an underlying window
displayed in a graphical user interface, the method comprising:
displaying a first window containing textual information
in a first format within a graphical user interface on a computer
screen;
displaying a second window within the graphical user
interface;
constantly monitoring the boundaries of the first window
and the second window to detect an overlap condition where the
second window overlaps the first window such that the textual
information in the first window is obscured from a user’s view;
automatically relocating the textual information, by a
processor, to an unobscured portion of the first window in a
8 See July 2015 Update Appendix: Examples, pp. 7—12 (Example 23)
(“Update”).
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second format during an overlap condition so that the textual
information is viewable on the computer screen by the user; and
automatically returning the relocated textual information,
by the processor, to the first format within the first window when
the overlap condition no longer exists.
Id. at 8; see also id. 8—9 (claim 4). As explained in the Update, claim 1 is
patent eligible because it is not directed to an abstract idea. Rather, claim 1
specifically “relates to addressing a problem with overlapping windows
within a graphical user interface,” and “does not recite any mathematical
concept or mental process such as comparing or categorizing information.”
Id. at 9. Claim 1 (and 4) of the Example is not comparable to Appellant’s
claim 12. Among other things, claim 1 includes a series of specific
implementation steps that clearly solve a particular problem — overlapping
windows and obscured text in GUIs. Such steps include, inter alia,
“constantly monitoring the [window] boundaries” and “automatically
relocating” obscured textual information when an overlap condition is
detected. Id. at 8. Such specific steps have no analogue in Appellant’s
claim 12, which broadly embraces sample analysis with conventional
computer components, differing, at most, by reason of abstract data
manipulation and classification operations of an algorithm running on a
processor.
Appellant contends claim 12 “recite[s] computer specific solutions”
related to classifying sample information, but that is not demonstrated with
persuasive evidence. Reply Br. 5. Indeed, the claim appears simply to use a
computer and its memory and processor components as “tools in aid of
processes focused on ‘abstract ideas’” without being an “improvement in
computers as tools.” Electric Power Group LLC v. Alstom S.A., 830 F.3d
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1350, 1354 (Fed. Cir. 2017). Moreover, unlike claim 1 of the Example, data
manipulations (“mathematical concepts”) are recited in Appellant’s claim
12.
Insofar as Appellant invokes Example 23 of the Update, we find
Appellant’s claim 12 is closer to claims 2 and 3 of that example, which the
guidance indicates should be rejected as ineligible. Update 8, 10—11.
Hypothetical claim 3, for example, recites:
3. A computer-implemented method of resizing textual
information within a window displayed in a graphical user
interface, the method comprising:
generating first data for describing the area of a first
graphical element:
generating second data for describing the area of a second
graphical element containing textual information; and
calculating, by the computer, a scaling factor for the
textual information which is proportional to the difference
between first data and second data.
Id. at 8. Like claim 12, claim 3 broadly signals that it is implemented on a
computer, adding only generic computer limitations without any clear
transformation of them. And, like claim 12, hypothetical claim 3 includes
abstract data generation and mathematical manipulation limitations without
a sufficiently specific and concrete implementation of those abstract
limitations. As pointed out in the Update’s analysis, “[e]ven though the
disclosed invention may improve computer technology, the claimed
invention provides no meaningful limitations such that this improvement is
realized.” Id. at 11 (emphasis added).
Appellant argues “each of the claimed elements is ‘significantly more’
than the alleged abstract idea.” App. Br. 5. Appellant refers to the patent-
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eligible claims in DDR Holdings LLC v. Hotels.com LP, 773 F.3d 1245,
1264 (2014), and contends Appellant’s claims, like those in DDR, solve
problems arising “solely in the computing context.” App. Br. 6—8. In
support, Appellant provides bullet points purporting to evidence the
problems solved by the invention. Id. at 6—7.
Appellant’s argument is unpersuasive. Appellant does not identify
which, if any, of the elements of the claims add up to “significantly more”
than an abstract idea. In any event, for reasons already explained above, we
are not persuaded that claim 12 is patent eligible under the two-step
Alice/Mayo framework.
We are also unpersuaded that claim 12 is similar to the claims in DDR
Holdings. There, the claims were tailored to a specific e-commerce and
Internet-centric problem, where visitors to a host’s website were lured away
by third-party advertisers and hyperlink’s associated with the third-party’s
products. DDR Holdings, 773 F.3d 1248. And, in DDR Holdings, the
claims required specific elements, transforming normal Internet and e-
commerce operations, to solve that problem. Id. at 1258. (“[T]he claims at
issue [] specify how interactions with the Internet are manipulated to yield a
desired result—a result that overrides the routine and conventional sequence
of events ordinarily triggered by the click of a hyperlink.”) Indeed, the
claims recited specific elements that created hybrid web pages to present
third-party product information, while keeping the look-and-feel of the
host’s website. Id. at 1259.9 Thus, the claims in DDR Holdings provided a
9 See, e.g., id. 1249 (claim 13 reciting, inter alia, a processor coupled to a
data store and the Internet, and programmed to “serve a composite web page
to the visitor computer wit[h] a look and feel based on the look and feel
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specific solution overcoming a problem “specifically arising the realm of
computer [technology].” Id. at 1257. Appellant’s claims lack this level of
specificity, and provide insufficient meaningful limitations that tie
performance of the abstract operations of the algorithm/program to a
particular technological problem and its solution.10
We have also considered Appellant’s alleged evidence, but it does not
demonstrate the patentability of claim 12. Appellant states that “[t]he
technical problems solved by this invention are described in the
specification,” yet this statement is followed by bullet points and citations
that are inaccurate. App. Br. 6. For example, the first four bullet points
include quotes that purport to show problems with prior art sample analysis.
Id. (‘“[Prior art] analysis condition is not necessarily the optimum condition
for the analysis of the target sample when analyzing samples of various
types.’ Specification, 17.”). This quoted content is not at the cited
paragraphs, or anywhere in Appellant’s Specification. The source of this
description in the data store and with content based on the commerce object
associated wit [h] the link.”).
10 For similar reasons, we are not persuaded claim 12 is analogous to the
claims in Enfish v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). Reply
Br. 3^4. In Enfish, the claims were held to be patent eligible because, inter
alia, they were “specifically directed to a self-referential table for a
computer database,” that was clearly contrasted with standard relational
databases and “improve[d] the way a computer stores and retrieves data in
memory.” Id. at 1337—1339; see also id. 1336—1337 (explaining specific
features of the self-referential table as embodied in the claimed “means for
configuring” language, which was interpreted under § 112, | 6 as requiring a
particular four-step algorithm). In other words, the claims in Enfish were
“directed to a specific improvement to the way computers operate,” rather
than an abstract idea implemented on a computer. Id. at 1336.
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“evidence” is unclear. Other quotations and citations are also incorrect, but
in some instances a similar disclosure appears elsewhere in the
Specification. For example the sixth bullet point appears to relate to a
disclosure at paragraph 47, not paragraph 52 as cited. Id. at 6. And the final
bullet point cites to paragraph 106. Id. at 7. Paragraph 106, however, does
not exist; Appellant may be referring to paragraph 98 based on the quoted
content. Compare Spec. 198 with App. Br. 7.
Even crediting Appellant’s citations, to the extent we can make sense
of them, they relate to a narrower type of sample analysis than what is
encompassed by claim 12. Appellant’s evidence relates to analysis in blood
cell classification processes, and more specifically quantifying blood cells
(e.g., leukocytes) in adult versus child blood. See, e.g., Spec. Tflf 45, 47, 79.11
Even if, for argument’s sake, a problem existed with prior art techniques for
sampling and classifying blood cells, Appellant’s claims are not tailored to
solving that problem. Rather, the claims encompass analysis and
classification of essentially any sample and particle type in such sample. In
short, what is lacking is an evidentiary nexus between Appellant’s
allegations of a technological improvement and the broad and abstract
claims on appeal.
Finally, Appellant contends “the instant claims . . . recite a non­
routine and non-conventional algorithm for classifying particles in a sample
based on classification conditions.” App. Br. 8. We remain unpersuaded.
As Appellant seemingly acknowledges, to the extent there is anything
11 The Specification explains “[t]he present inventors acknowledge that the
blood cells contained in child blood have lower stainability than blood cell
contained in adult blood.” Spec. 145.
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unconventional about claim 12, it resides in the algorithm. But this
algorithm is just made up of abstractions as explained above. It is not,
therefore, enough to demonstrate patent eligibility under § 101. Flook, 437
U.S. at 588; Synopsis, 839 F.3d at 1151.
For the above reasons, the preponderance of the evidence supports the
Examiner’s conclusion that claim 12 is patent ineligible under § 101.
Claims 1 and 20 (and the rejected dependent claims) were not argued
separately and, thus, fall for similar reasons. 37 C.F.R. § 41.37(c)(l)(iv).
SUMMARY
We affirm rejection of claims 1 and 3—20 for claiming patent-
ineligible subject matter under 35 U.S.C. § 101. The double-patenting
rejection is dismissed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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