Ex Parte Iwamoto

Patent Trial and Appeal Board

Jun 18, 2018

12602325 (P.T.A.B. Jun. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/602,325
83377 7590
EGL/Panasonic
P.O. Box 10395
Chicago, IL 60610
FILING DATE FIRST NAMED INVENTOR
06/23/2010 Ryuji Iwamoto
06/18/2018
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.
11329/66 4125
EXAMINER
PEREZ BERMUDEZ, Y ARITZA H
ART UNIT PAPER NUMBER
2864
MAIL DATE DELIVERY MODE
06/18/2018 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
Exparte RYUJI IWAMOTO
Appeal2017-007327
Application 12/602,325
Technology Center 2800
Before JAMES C. HOUSEL, BRIAND. RANGE, and
MICHAEL G. McMANUS, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL 1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner's decision rejecting claims 1, 2, 4--10, and 12-16 under 35 U.S.C.
§ 101 as not directed to patent eligible subject matter. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Our decision refers to the Specification (Spec.) filed June 23, 2010, the
Examiner's Final Office Action (Final) dated June 15, 2016, Appellant's
Appeal Brief (Appeal Br.) filed November 10, 2016, the Examiner's Answer
(Ans.) dated February 9, 2017, and Appellant's Reply Brief (Reply Br.) filed
April 7, 2017.
2 According to Appellant, the real party in interest is Panasonic Intellectual
Property Management Co., Ltd. Appeal Br. 2.
Appeal2017-007327
Application 12/602,325
STATEMENT OF THE CASE
The invention relates to a method of recording a flow rate change
history, and a non-transient computer readable medium and apparatus for
performing the method ( claims 1, 8, 9).
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal.
1. A method of recording a flow rate change history, comprising a
computer and a memory that stores computer executable
programs executed by the computer to implement:
measuring a flow rate of fluid at a first time interval;
generating a series of difference values from
measurements of the flow rate measured during a
predetermined time period, the series of difference values each
calculated between respective pairs of measurements of flow
rate, and the measurements in a respective pair being separated
in time at a second time interval equal to or longer than the first
time interval;
converting the series of difference values into a series of
codes with reference to a flow rate class table which is arranged
to define a range of difference values divided into classes each
associated with a code, wherein the series of difference values
are each replaced with a code associated with a class to which
the difference value belongs; and
using the series of codes to generate a flow rate change
history representing a flow rate change which occurred during
the predetermined time period,
wherein the classes in the flow rate class table comprise
four event categories comprising (a) a category indicative of an
event that the flow rate is substantially zero, (b) a category
indicative of an event that the flow rate is stable and not zero,
( c) a category that the flow rate is increasing, and ( d) a category
indicative of an event that the flow rate is decreasing.
Independent claim 8 recites a non-transient computer readable
medium containing a program for recording a flow rate change history,
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wherein the program is executed by a computer to implement a method
substantially the same as recited in claim 1. Independent claim 9 recites a
flow rate measurement apparatus comprising sections for performing
substantially the same functions as recited in claim 1.
Appellant argues the rejected claims together as a group.
Accordingly, we select claim 1 as the representative claim on which we
focus in deciding this appeal as to the maintained rejection. We review the
appealed rejection for error based upon the issues identified by Appellant
and in light of the arguments and evidence produced thereon. Ex parte Frye,
94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) cited with approval in
In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long been the
Board's practice to require an applicant to identify the alleged error in the
examiner's rejections.")). After considering claim 1 relative to caselaw
presented in this Appeal and each of Appellant's arguments, we are not
persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner's rejection for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
ANALYSIS
To determine whether subject matter is patentable under 35 U.S.C.
§ 101, the Supreme Court has set forth a two part test "for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts." Alice
Corp. Pty. Ltd. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2355 (2014). The first
step in the analysis is to "determine whether the claims at issue are directed
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to one of those patent-ineligible concepts," such as an abstract idea. Id.
( citation omitted). For computer-related technologies, "the first step in the
Alice inquiry ... asks whether the focus of the claims is on the specific
asserted improvement in computer capabilities" (which would be eligible
subject matter) or instead "on a process that qualifies as an 'abstract idea' for
which computers are invoked merely as a tool" ( which would be ineligible
subject matter). Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36,
1338 (Fed. Cir. 2016) (emphasis added). "If the claims are not directed to an
abstract idea [ or other patent-ineligible concept], the inquiry ends. If the
claims are 'directed to' an abstract idea, then the inquiry proceeds to the
second step of the Alice framework." McRO, Inc. v. Bandai Namco Games
Am. Inc., 837 F.3d 1299, 1312 (Fed. Cir. 2016). Moreover, the Federal
Circuit has recognized "that defining the precise abstract idea of patent
claims in many cases is far from a 'straightforward' exercise." Synopsys,
Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1150 (Fed. Cir. 2016)
(quoting DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257
(Fed. Cir. 2014)). In view of this, the Federal Circuit has defined the "'basic
thrust"' of a claim, something that is wholly consistent with the description
of an invention, to determine what abstract idea the claim may be directed
to. Synopsys, 839 F.3d at 1150-51.
The Examiner determines that claim 1 is directed to an abstract idea,
particularly calculation of difference values related to flow rates and
conversion of a series of these difference values into a series of codes based
on a class to which the difference values belong. Final 2-3. The Examiner
further finds that the courts have identified conversion algorithms as a type
of abstract idea. Id. at 3, citing SmartGene, Inc. v. Advanced Biological
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Laboratories, SA, 555 Fed.Appx. 950, 954 (Fed. Cir. 2014) ("section 101
did not embrace a process defined simply as using a computer to perform a
series of mental steps that people, aware of each step, can and regularly do
perform in their heads"), Cybeifone Systems, LLC v. CNN Interactive
Group, Inc., 558 Fed.Appx 988, 992 (Fed. Cir. 2014) ("the well-known
concept of categorical data storage, i.e., the idea of collecting information in
classified form, then separating and transmitting that information according
to its classification, is an abstract idea that is not patent-eligible"),
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) ("an
abstract idea, which is, as the district court found, a method of using
advertising as an exchange or currency"), In re Grams, 888 F.2d 835, 838
(Fed. Cir. 1989) ("an algorithm, or mathematical formula ... like a law of
nature ... cannot be the subject of a patent"), and In re Abele, 684 F .2d 902,
905 (CCPA 1982) (an algorithm or procedure for solving a given type of
mathematical problem is an abstract idea).
The Examiner next determines that the additional elements of claim 1,
viewed as a whole, do not provide meaningful limitations to transform the
abstract idea into a patent eligible application of the abstract idea such that
the claim amounts to significantly more than the abstract idea itself. Final 3.
The Examiner determines that the only additional element, aside from the
abstract idea, is the measurement of the flow rate of a fluid at a first time
interval, which the Examiner finds is mere data gathering recited at a high
level of generality and, as such, "is insignificant extra-solution activity using
conventional equipment." Id. at 4. In addition, the Examiner determines
that the mere use of a generic computing device to perform generic
computing functions or mere instruction to implement the abstract idea also
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does not amount to significantly more than the abstract idea. Id. Moreover,
considering the claim as a whole, the Examiner determines that claim 1 does
not include non-limiting or non-exclusive improvements to another
technology or technical field, improvements to the functioning of the
computer itself, or meaningful limitations beyond generally linking the use
of the abstract idea to a particular technological environment. Id.
Appellant argues that the claims are not directed to an abstract idea,
asserting that the Examiner failed to consider the limitations as a whole.
Appeal Br. 7, citing Enfish. Appellant contends that the Examiner
committed the same error as did the district court in Enfzsh. Id. at 8.
Therein, Appellant asserts that the district court concluded that the claims
were directed to the abstract idea of storing, organizing, and retrieving
memory in a logic table, but that the Federal Circuit faulted this conclusion
for describing the claims at such a high level of abstraction and untethered
from the language of the claims. Id. Appellant further asserts that Enfzsh
held that "the claims are not simply directed to any form of storing tabular
data, but instead specifically directed to a self-referential table for a
computer dataset." Id.
Appellant urges that the same holds true for the invention recited in
claim 1, which is not directed to any form of comparing data, any form of
organizing information, any form of algorithm, or any form of calculating
differences. Appeal Br. 8. According to Appellant, the invention of "claim
1 is directed specifically to use of a flow rate class table to convert
differences of temporally adjacent measured flow rates into codes that can
be handled with less memory space and less computational overhead for
identification of gas appliances." Id. Appellant asserts that Enfzsh and claim
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1 share a common feature in that Enfzsh used a self-referential table to
improve computer performance, while claim 1 uses a flow rate class table to
improve computer performance. Id. at 8-9, citing Spec. ,r 14.
Appellant further compares claim 1 to the claimed invention in
McRO, describing McRO's claims as "the steps of: (1) obtaining a timed
data file comprising sequences of data; (2) generating an intermediate stream
of output data sets between two adjacent sets by evaluating the sequences of
data; (3) generating a final stream of output data sets from the intermediate
stream of output data sets; and (4) using the final stream of output data sets
to produce a desired result." Appeal Br. 10. Appellant contends that "claim
1 may be similarly described as consisting in effect of: ( 1) obtaining a timed
data file comprising a series of measured flow rates (i.e., sequences of data);
(2) generating a series of difference values (i.e., an intermediate stream of
output data sets) between two temporally adjacent measurements of flow
rates by evaluating the series of measured flow rates; (3) generating a series
of codes (i.e., a final stream of output data sets) by converting the series of
difference values with reference to a flow rate class table; and ( 4) using the
series of codes to generate a flow rate change history (i.e., a desired result)."
Id.
Under step one of the Alice framework, we note, claim 1 recites a
flow rate measurement step, a step of calculating a series of difference
values from the flow rate measurements during a predetermined time period,
a step of converting this series of difference values into a series of codes
using a flow rate class table with four event categories, and using the series
of codes to generate a flow rate change history. The four event categories in
claim 1 are: (a) flow rate is substantially zero; (b) flow rate is stable and not
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zero; ( c) flow rate is increasing; and ( d) flow rate is decreasing. Figure 2
depicts the flow rate class table or table of flow rate difference values and
their associated codes assigned by Appellant. Spec. ,r 28. The number of
codes or classes is not limited, though Appellant depicts both 16 and 4, and
claim 1 recites four. Id. Once the difference calculation is performed, this
difference is assigned a code according to the table. Id. When this process
is performed for a series of difference values, a series of codes representing
the flow rate change history is generated which completes the method of
claim 1. Appellant discloses that, because of the use of coding in appliance
identification, "computations are simplified and it is made possible to
improve the computing speed and the appliance identification accuracy
while decreasing the memory amount required for the computations." Spec.
However, claim 1 does not limit the method to appliance ( or
phenomenon) identification. The first step of the method of claim 1 is
merely a data gathering step for providing data on which the mathematical
and coding operations are performed to provide flow rates over time as seen
in Figures 3B and 4B. Moreover, as the Examiner determines (Final 3, 6;
Ans. 3, 5, 6, 13), the method recited in claim 1 merely defines mental
activity, other than the collection of flow rate measurements.
"Information as such is an intangible" and, regarding the first step of
Alice, our reviewing court has "treated collecting information, including
when limited to particular content ( which does not change its character as
information), as within the realm of abstract ideas." Electric Power Grp.,
LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). Similarly, the
Federal Circuit "treat[s] analyzing information by steps people go through in
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their minds, or by mathematical algorithms, without more, as essentially
mental processes within the abstract-idea category." Id. at 1354; see also
Digitech Image Technologies, LLC v. Electronics 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.").
For example, the difference calculations are merely simple subtraction
operations that can be and are performed mentally. The code conversion is
merely an assignment of a code to describe each difference value according
to a predetermined designation for that difference value, which describes a
mental process often used to assimilate large amounts of data into a more
manageable size, e.g., as is often done with population data converting
population data to income ranges, rather than storing each individual by their
income, or grading student test scores by assigning a code of A for scores
from 90-100, B for scores of 80-89, etc. The use of the series of codes to
generate a flow rate change history merely creates a table of coded data
rather than a table of an equal number of difference values. See Fig. 3A
(converting difference values to 16 class codes and then to 4 class codes).
Thus, we agree with the Examiner that claim 1 defines an abstract idea
directed primarily to mental activity. See SmartGene, 555 Fed.Appx. at 954.
Likewise, we further agree that claim 1 resembles the abstract idea
presented in Cyberfone, in that this claim collects flow rate information,
performs a series of mathematical operations (subtraction) on this
information, and categorizes the information for storage. See Cyberfone,
558 Fed.Appx at 992 (Fed. Cir. 2014). We note that Appellant fails to
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address these decisions, or any of the remaining decisions cited by the
Examiner, relative to the scope of claim 1.
Regarding Enfzsh, Appellant mischaracterizes the court's holding
therein, which held that the claims were not directed to the abstract idea of
organizing information using tabular formats, but to a specific improvement
to the way computers operate, embodied in a self-referential table for a
computer database which functioned differently than conventional database
structures and achieved benefits in computer performance over conventional
databases. Enfzsh, 822 F.3d at 1332 and 1336. Enfzsh describes a self-
referential table as a table that includes not only data as was conventional,
but also how the data are arranged in physical memory devices, which was
not conventional. Enfzsh, 822 F.3d at 1330.
Unlike Enfzsh, we discern in claim 1 no change in the way a computer
or computer memory operates. Indeed, although Appellant discloses that the
coding conversion performed by claim 1 enables simplified computations,
Appellant fails to direct our attention to any disclosure in support of
simplification of computations. In fact, in order to determine whether a flow
rate is stable (unchanging over time), increasing or decreasing, the same
difference calculations would be performed. Further, although Appellant
discloses that less memory space is required, we note that claim 1 assigns a
code to a difference value, which code may or may not require less memory
bits than the difference value. Further, even where the code would require
less bits than the difference value, such data compression occurs as a loss of
data specificity similar again to the assignment of population codes or
student test scores. We note that Appellant fails to direct our attention to
any evidence in support of the reduction in memory use, improved
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computing speed, or improved accuracy through the use of the method of
claim 1 as compared to the same method performed without coding.
Accordingly, we are not persuaded that claim 1 is directed to an invention
that improves the way a computer operates.
Regarding McRO, Appellant mischaracterizes the court's holding
therein, which held that the claims directed to automatically animating lip
synchronization and facial expressions of three-dimensional animated
characters were limited to rules with specific, common characteristics,
defining a morph weight set stream as a function of phoneme sequence and
times associated therewith. McRO, 837 F.3d at 1313. As such, McRO held
that the method of these claims, which allow computers to produce accurate
and realistic lip synchronization and facial expressions that previously could
only be produced by human animators, were patent eligible. Id.
Unlike McRO, claim 1 is not directed to a method that allows
computers to produce accurate and realistic computer simulations that
previously only could be produced by human operators in a way that was not
previously used by these human operators. Nor is claim 1 directed to a
method of automatically performing a complex function limited to rules with
specific, common characteristics. Accordingly, we are not persuaded by
Appellant's attempt to recharacterize the McRO claims in a manner so as to
create similarity where such does not exist.
The claim language, in light of the Specification, thus supports the
Examiner's determination that the claims are directed to the abstract idea of
"calculation of difference values related to flow rates and conversion of a
series of these difference values into a series of codes based on a class to
which the difference values belong." Indeed, courts have regarded
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algorithms performing mathematical operations and data conversions in
various forms as abstract ideas. See Diamond v. Diehr supra (the Arrhenius
equation); Gottschalkv. Benson, 409 U.S. 63 (1972) (an algorithm for
converting binary coded decimal to pure binary); Mackay Radio, 306 U.S.
86 (1939) (a formula describing certain EM standing wave phenomena);
Parker v. Flook, 98 U.S. 2522 (1978) (a formula for computing an alarm
limit); Grams, 888 F.2d 835 (an algorithm for calculating parameters
indicating an abnormal condition); Abele, 684 F.2d 902 (calculating the
difference between local and average data values). Therefore, we are not
persuaded that the Examiner erred in determining claim 1 is directed to an
abstract idea under step one of the Alice framework.
If a 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 Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66,
78-79 (2012)). Thus, a claim that recites an abstract idea must include
"additional features" to ensure "that the [claim] is more than a drafting effort
designed to monopolize the [abstract idea]." Id. (quoting Mayo, 566 U.S. at
78). In other words, the second step is to "search for an 'inventive concept' -
i.e., an element or combination of elements that is 'sufficient to ensure that
the patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself."' Id. ( citing Mayo, 566 U.S. at 72-73).
Here, the Examiner finds claim 1 does not recite additional elements
sufficient to transform the abstract idea into patent eligible subject matter.
Final 2--4. In particular, the Examiner determines that claim 1 recites only
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the additional element of measuring a flow rate that amounts to no more than
"mere data gathering recited at a high level of generality, which is
insignificant extra-solution activity using conventional equipment." Id. at 4.
In addition, the Examiner determines that the mere use of a generic
computing device to perform generic computing functions or mere
instructions to implement the abstract idea does not amount to significantly
more than the abstract idea itself. Id.
Appellant argues that the Examiner applies the wrong test for deciding
whether claim 1 is patent eligible and applies the wrong meaning to the
terms, "mere use of a generic computer." Appeal Br. 11. Appellant again
compares claim 1 to McRO, asserting that claim 1 defines specific rules for
organizing the flow rate class table which comprises four event categories.
Id. at 11-12. Appellant contends that these rules are applied to define
classes in the table according to which difference values are converted into
codes. Id. at 12. According to Appellant, it is the incorporation of these
rules, not the use of the computer, that "materializes the improvement to the
prior art technologies and sufficiently ensures that the patent in practice
amounts to significantly more than a patent upon the ineligible concept
itself." Id.
Moreover, Appellant argues that the claimed subject matter is non-
conventional because the Examiner has not maintained a prior art rejection
under 35 U.S.C. § 103. Appeal Br. 12. Appellant further argues claim 1
recites a specific application of the idea and is not pre-emptive. Id. In
particular, Appellant urges that "[t]he claimed invention has a specific
application of algorithm to identifying gas appliances in a more efficient
way than prior art." Id.
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We note Appellant does not dispute the Examiner's determination that
the flow measurement step is the only additional element aside from the
abstract idea, nor does Appellant dispute that this step is merely a data
gathering step providing data to the steps of the abstract idea. Therefore,
this measurement step is insufficient to transform the abstract idea into a
patent-eligible invention. See Electric Power Group, 830 F.3d at 1355;
Ultramercial, 772 F .3d at 716; CyberSource Corp. v. Retail Decisions, Inc.,
654 F.3d 1366, 1370 (Fed. Cir. 2011); Grams, 888 F.2d at 838. In addition,
Appellant does not argue that this step is not conventional, routine, and well-
known. Appellant discloses that flow rate measurement units were known in
the art prior to the invention. Spec. ,r 2. Indeed, Appellant discloses that a
computation unit for finding difference values between the flow rate values
output from the flow rate measurement unit was also known in the art prior
to the invention. Id.
Further, even taken as an ordered combination of elements, claim 1
merely recites a necessary data gathering step and the abstract idea for
manipulating that data via a series of identical mathematical operations
(subtractions) and a series of code conversions for the resulting difference
values according to a look-up table. Additionally, although Appellant
contends that the claimed invention is limited to a specific application of the
abstract idea, that being identifying gas appliances in a more efficient
manner, we disagree. Claim 1 does not recite any specific application of the
abstract idea other that recording a flow rate change history; it does not
recite either an intent to identify gas appliances or a step of identifying gas
appliances.
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Moreover, unlike McRO, which the Examiner accurately describes as
defining a patent-eligible method because the claims define a technological
improvement that allows a computer to produce accurate and realistic lip
synchronization and facial expressions in animated characters through the
use of a set of rules, rather than artists, which rules include meaningful
requirements (morph weight set stream as a function of phoneme sequence
and times associated therewith), that allow for the realization of the
improvement. Ans. 11. Unlike McRO, claim 1 fails to recite specific rules
having meaningful requirements which allow for the realization of an
improvement that could not be done by computers before the invention. As
discussed above, claim 1 merely sets forth the performance of a simple
mathematical operation ( calculation of difference values from the measured
flow rates) which was known in the art and a code conversion operation for
assigning a code to each difference value as appropriate from a flow rate
class or look-up table.
With regard to Appellant's arguments that the claimed subject matter
is non-conventional because the Examiner has not maintained a prior art
rejection under 35 U.S.C. § 103, we note, as did the Examiner (Ans. 12), a
determination that a claim is directed to patent ineligible subject matter
under 35 U.S.C. § 101 is independent of a determination that the claim is
free of the prior art under § 103. Here, claim 1 recites a method whose only
additional element, apart from the abstract idea, is a data gathering step
which our reviewing court has consistently determined is insufficient to
transform an otherwise ineligible abstract idea to a patent eligible invention.
Further, as an ordered combination, we likewise determine that this
additional element does not meaningfully limit the abstract idea in a
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transfonnative manner. As the Examiner determines (Ans. 13-14), claim 1,
as a whole, does not confine the abstract idea to a particular technological
application, improve the functioning of a computer itself, or improve another
technological field.
As such, we are unable to identify an 'inventive concept,' i.e., an
element or combination of elements that is 'sufficient to ensure that the
claimed method in practice amounts to significantly more than a claim upon
the abstract idea itself. Therefore, we are not persuaded that the Examiner
erred in determining claim 1 fails to recite additional elements or an ordered
combination of elements which identify an inventive concept or are
sufficient to transform the otherwise ineligible abstract idea into a patent
eligible invention under step two of the Alice framework.
Appellant does not separately argue any of the remaining claims.
Accordingly, we sustain the Examiner's rejection of claims 1, 2, 4--10, and
12-16 as directed to non-statutory subject matter under 35 U.S.C. § 101.
DECISION
Upon consideration of the record, and for the reasons given above and
in the Answer, the decision of the Examiner rejecting claims 1, 2, 4--10, and
12-16 under 35 U.S.C. § 101 as not directed to patent eligible subject matter
is affirmed.
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No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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