Ex Parte Kalkovich et al

Patent Trial and Appeal Board

Sep 28, 2018

13725222 (P.T.A.B. Sep. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/725,222
11943 7590
O""Shea Getz P.C.
FILING DATE FIRST NAMED INVENTOR
12/21/2012 Dean W. Kalkovich
10/02/2018
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.
P A-0024390-US 4920
EXAMINER
10 Waterside Drive, Suite 205 SEABE, JUSTIN D
Farmington, CT 06032
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
10/02/2018 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):
uspto@osheagetz.com
shenry@osheagetz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DEAN W. KALKOVICH, FRANKE. BULLIS, and
BOBBY ALLEN
Appeal2017-008522
Application 13/725,222
Technology Center 3700
Before ANNETTE R. REIMERS, JEFFREY A. STEPHENS, and
ERIC C. JESCHKE, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
United Technologies Corp. ("Appellant") 1 seeks our review under
35 U.S.C. § 134(a) from the Examiner's Final Office Action ("Final Act.")
rejecting claims 1, 3, 4, 6-9, 11, 12, 14--19, and 23, which are all the claims
pending in the application. We have jurisdiction under 35 U.S.C. § 6(b ).
1 Appellant is the applicant pursuant to 37 C.F.R. § 1.46. Appellant is also
identified as the real party in interest. Br. 3.
Appeal2017-008522
Application 13/725,222
For the reasons explained below, we do not find error in the rejections
of the pending claims under 35 U.S.C. § 101 or 35 U.S.C. § I03(a).
Accordingly, we AFFIRM.
Claimed Subject Matter
Claims 1, 11, and 17 are independent. Claim 1, reproduced below,
illustrates the claimed subject matter.
1. A method of monitoring a rotational system comprising:
defining a tolerance band on a predetermined basis or from
a multiple of spool-down profiles;
identifying, by a processor, a non-nominal spool-down
profile that is outside of the tolerance band, wherein the non-
nominal spool-down profile is based on a speed of a turbine rotor
shaft measured by a speed sensor over time;
providing an alert upon identification of the non-nominal
spool-down profile that indicates that a maintenance or
replacement activity should be scheduled.
Rejections
I. Claims 1, 3, 4, 6-9, 11, 12, 14--19, and 23 stand rejected under
35 U.S.C. § 101 as being directed to patent ineligible subject matter. Final
Act. 2--4.
II. Claims 1, 3, 4, 6-9, 11, 12, 14--19, and 23 stand rejected under
pre-AIA 35 U.S.C. § 112, first paragraph, as failing to comply with the
written description requirement. Final Act. 4--5.
III. Claims 1, 3, 4, and 7-9 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as unpatentable over Feeney (US 7,487,029 B2, issued Feb. 3,
2009) and McKelvey (US 2004/0200207 Al, published Oct. 14, 2004).
Final Act. 5---6.
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IV. Claim 6 stands rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Feeney, McKelvey, and Raimarckers (US 8,676,436 B2,
issued Mar. 18, 2014). Final Act. 6-7.
V. Claims 11, 12, 15-17, and 19 stand rejected under pre-AIA
35 U.S.C. § I03(a) as unpatentable over Feeney, McKelvey, and Zhang (US
7,801,660 B2, issued Sept. 21, 2010). Final Act. 7-8.
VI. Claim 14 stands rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Feeney, McKelvey, Zhang, and Raimarckers. Final Act.
8-9.
VII. Claim 18 stands rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Feeney, McKelvey, Zhang, and Klaass (US 5,161,363,
issued Nov. 10, 1992). Final Act. 9.
VIII. Claim 23 stands rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Feeney, McKelvey, Raimarckers, and Ansari (US
2011/0265443 Al, published Nov. 3, 2011). Final Act. 9-10.
DISCUSSION
Rejection 1-35 US.C. § 101
Claims 1, 3, 4, 6-9, 11, 12, 14-19
Appellant argues all claims rejected under§ 101 as a group. Br. 8-9.
We select claim 1 as representative, and the remaining claims stand or fall
with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner determines that claim 1 is directed to an abstract idea.
Final Act. 3. The Examiner determines that the "defining," "identifying,"
and "providing" steps of claim 1 either relate to mathematical operations or
do not amount to significantly more. Id. The Examiner further explains that
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"[t]he claims are directed to the abstract idea of determining a 'non-nominal
spool down profile' and then providing an alert upon detection," and that
"[ e Jach of the steps when laid out amount to mathematical relationships and
formulas which would define a curve and then determine whether the data
measured is outside of the limits to signal an alarm which have been held to
be directed to an abstract idea," analogizing to Parker v. Flook, 437 U.S.
584, 599 (1978). Ans. 10. The Examiner further determines that the
claimed functions are performed using conventional, generic technology,
and merely require the selection and manipulation of information as in
Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016).
Ans. 10-11. The Examiner notes that the claimed speed sensor collects data
and the processor analyzes it. Id. at 11.
Appellant argues the claimed subject matter is unlike that in Alice
Corp. v. CLS Bank International, 134 S. Ct. 2347 (2014), because claim 1
"is not merely directed to mental steps or methods of organizing human
activity that coincidentally happen to be applied with a computer." Br. 8.
"Instead," Appellant contends, "claim 1 is directed to useful, concrete, and
tangible results," including the "identifying" step of claim 1, and recites
structure ( e.g., a processor, a speed sensor) that is used to provide the results.
Id. Appellant also argues documentation is necessary "to support the
assertion that claim 1 is directed to an abstract idea." Id. Appellant cites for
support buySAFE, Inc. v. Google, Inc., 765 F.3d 1350 (Fed. Cir. 2014),
suggesting that the Federal Circuit's citation to a paper from 1927 was
necessary to conclude that the contractual relationship that was the subject of
the claims in that case was "beyond question of ancient lineage," buySAFE,
765 F.3d at 1355. See Br. 8. For these reasons, Appellant argues, "the
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Office Action fails to establish that claim 1 is directed to an abstract idea."
Id.
Appellant's arguments at most indicate that the claims of the present
case differ from those of Alice and buySAFE, but fail to persuasively address
the question of whether claim 1 is nonetheless directed to an abstract idea.
The Federal Circuit in buySAFE determined the claims in that case "do not
push or even test the boundaries of the Supreme Court precedents under
section 101" because they involved creating a contractual relationship of
ancient lineage, thus addressing subject matter similar to that in Bilski v.
Kappas, 561 U.S. 593 (2010), and Alice. buySAFE, 765 F.3d at 1353-55.
In this case, the Examiner does not contend that the present claims are
directed to a fundamental economic practice long prevalent in our system of
commerce. Rather, the Examiner compares claim 1 to the subject matter in
Parker v. Flook (involving updating alarm limits in a catalytic converter
process). See Ans. 10. Appellant does not explain how the claims in this
case differ, in a manner material to Section 101 analysis, from the subject
matter at issue in Parker v. Flook. We note also the similarity of the claims
at issue here to the claims in Electric Power Group, which involved real-
time performance monitoring of an electric power grid by collecting data
from multiple data sources, analyzing the data, and displaying the results.
830 F.3d at 1351; see also Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327,
1334 (Fed. Cir. 2016) (stating that the Federal Circuit and the Supreme
Court "have found it sufficient to compare claims at issue to those claims
already found to be directed to an abstract idea in previous cases"). Claim 1
differs by reciting a different environment (i.e., "a rotational system"), the
collection of different data, and a different analysis of the data. Basing
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eligibility on this difference, however, would run counter to the Supreme
Court's exhortation that "the prohibition against patenting abstract ideas
cannot be circumvented by attempting to limit the use of the formula to a
particular technological environment or adding insignificant postsolution
activity." Bilski, 561 U.S. at 610-11 (internal quotations omitted).
Appellant also asserts that the features of claim 1, taken both
individually and as a whole, amount to significantly more than the abstract
idea itself. Br. 8-9. Appellant's explanation, however, consists of the
contention that claim 1 is patentably distinguishable from the art that formed
the Examiner's obviousness rejections. Id. at 9. Among other things,
however, collapsing step two of the Alice framework to a question of
obviousness fails to address whether "significantly more" is added to the
abstract idea. See BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281 (Fed.
Cir. 2018) ( explaining that it is irrelevant at Alice step two whether the
abstract idea "may have been non-routine or unconventional as a factual
matter," because "[a]s a matter of law, narrowing or reformulating an
abstract idea does not add 'significantly more' to it"); see also SAP Am., Inc.
v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018) ("We may assume
that the techniques claimed are [g]roundbreaking, innovative, or even
brilliant, but that is not enough for eligibility. Nor is it enough for subject-
matter eligibility that claimed techniques be novel and nonobvious in light of
prior art, passing muster under 35 U.S.C. §§ 102 and 103." (citations and
quotations omitted)). Thus, Appellant's argument does not inform us of
error in the Examiner's rejection on this basis.
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of representative
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claim 1 under 35 U.S.C. § 101. Thus, we sustain the rejection and, for the
same reasons, the rejection of claims 3, 4, 6-9, 11, 12, 14--19, and 23.
Re} ection II - 3 5 US. C. § 112, first paragraph
Claims 1, 3, 4, 6-9, 11, 12, 14-19, and 23
The Examiner finds the claims lack written description support
because "the terms 'nominal' and 'non-nominal' are not considered widely
utilized in the art, and because the algorithm for determining what is
'nominal' and 'non-nominal' has not been identified in the originally filed
disclosure." Ans. 11; see Final Act. 4--5. We agree with Appellant,
however, that the Specification reasonably conveys that the inventors were
in possession of these aspects of the claimed invention. See Br. 9-10.
Paragraphs 28-30 and Figure 4 of the Specification are particularly relevant.
Paragraph 30 provides that "the tolerance band 92 may be predetermined or
calculated from an average of a multiple of starts." We understand from this
disclosure, along with the illustration in Figure 4, that averaging the spool-
down profiles of previous starts will provide a tolerance band within which
the profile may be considered "nominal." The Examiner questions how it is
known that the average is normal/nominal, Final Act. 4, but the portion of
the Specification quoted above itself indicates that an average is nominal. In
other words, the Specification discloses that averaging is the algorithm used
to determine the tolerance band that sets the boundary between a nominal
and non-nominal spool-down profile. We are not persuaded that more is
needed here to demonstrate possession of the limitations identified by the
Examiner.
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In view of the foregoing, we do not sustain the rejection of claims 1,
3, 4, 6-9, 11, 12, 14--19, and 23 under 35 U.S.C. § 112, first paragraph.
Rejection 111-35 USC§ 103(a)
Claims 1, 3, 4, and 7-9
Claims 1, 3, 4, 7, and 9
The Examiner finds Feeney teaches all limitations of claim 1 except
that "Feeney utilizes the speed rather than acceleration as the base for the
profile." Final Act. 5. 2 The Examiner finds McKelvey teaches a gas turbine
engine control apparatus that utilizes a speed detection device and calculates
acceleration. Id. at 6. The Examiner determines one of skill in the art would
have measured the speed of Feeney's turbine over time as taught in
McKelvey "for the purposes of providing an indication of a non-nominal
spool-down profile more accurately, either with the acceleration error
signal( s) or a redundant signal with the acceleration." Id. The Examiner
further reasons that "[t]he parameters of Feeney can be changed or
additional parameters provided, acceleration is widely known to be utilized
in indication parameters for turbine rotor control as taught by McKelvey,
and acceleration is based on the speed (already taught by Feeney)." Id.
Appellant contends Feeney does not teach "identifying, by a
processor, a non-nominal spool-down profile that is outside of the tolerance
2 The Examiner's finding indicates that the Examiner interprets claim 1 's
limitation that "the non-nominal spool-down profile is based on a speed of a
turbine rotor shaft measured by a speed sensor over time" to mean that
acceleration is monitored. We decide the case based on this unchallenged
interpretation, and need not decide whether measurement of speed at
disparate times, even if not an accurate measure of acceleration, may meet
this limitation under the broadest reasonable interpretation of claim 1.
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band, wherein the non-nominal spool-down profile is based on a speed of a
turbine rotor shaft measured by a speed sensor over time," as recited in
claim 1. Br. 10. Appellant argues Feeney describes monitoring shaft speed
as a function of temperature. Id. (citing Feeney col. 4, 11. 8--45, col. 6, 11. 56-
60). Feeney, however, teaches that "shaft speeds, interturbine temperatures,
or other operating parameters may be monitored and
exceedances/nonexceedances of a reference limit counted to warn the
operator of an impending limit condition." Col. 6, 11. 56-59. Shaft speed is
listed as a separate parameter here, contradicting Appellant's argument that
it is monitored as a function of temperature.
Appellant also argues that "the alleged profile of the shaft speed in
Feeney is not a spool-down profile of speed measured over time" because
"in Feeney the speed is measured at discrete points in time and related to a
threshold on the basis of a counter." Br. 10. As explained supra, however,
the Examiner relies on McKelvey for teaching measurement of speed over
time.
As to McKelvey, Appellant contends the reference "describes
controlling the degree that a fuel control valve is open to control a rotational
speed of a turbine." Br. 11. Appellant states that McKelvey calculates a
deviation of a current rotational speed value from a target and makes
corrections on that basis. Id. Therefore, argues Appellant, "in McKelvey
any alleged identification of a non-nominal spool-down profile is based on
the measurement of the current rotational speed" in relation to a target and is
not based on the measurement of a turbine rotor shaft measured by a speed
sensor over time. Id.
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"[O]ne cannot show non-obviousness by attacking references
individually where, as here, the rejections are based on combinations of
references." In re Keller, 642 F.2d 413,426 (CCPA 1981). Here, the
Examiner does not rely on McKelvey for teaching identification of a non-
nominal spool-down profile. As discussed supra, Feeney is relied on to
teach such identification. Thus, Appellant's argument as to whether
McKelvey's error correction is based on current speed or speed measured
over time does not address the Examiner's rejection based on the combined
teachings of the references. Appellant does not persuasively challenge the
Examiner's finding that McKelvey teaches measuring speed over time, or
the articulated reasons why one of ordinary skill in the art would have used
such measurements to monitor operation parameters as taught by Feeney.
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of claim 1 under
35 U.S.C. § 103(a) as unpatentable over Feeney and McKelvey. Thus, we
sustain the rejection and, for the same reasons, we sustain the rejection on
the same ground of claims 3, 4, 7, and 9, which are not argued separately.
Claim 8
Claim 8 depends from claim 1 and recites "defining the non-nominal
spool-down profile to be within a peak speed and a drop-off speed." The
Examiner finds Feeney's non-nominal spool-down profile would be "within
a peak speed (maximum speed) and a drop-off speed (a minimum speed) of
operation." Final Act. 5.
Appellant argues that, "[ c ]onsistent with the Applicant being his/her
own lexicographer, the filed specification (see, e.g., paragraphs [0012],
[0013], [0029]) defines the peak speed as the speed after the rotational
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system/ A TS disengages from an accessory gearbox." Br. 11 (brackets in
original). 3 Appellant argues Feeney describes determining a difference
between an actual value and an expected value of an engine parameter, and
that the rejection of claim 8 is in error because "Feeney is completely silent
regarding that expected value coinciding with a speed at which the alleged
rotational system/ATS disengages from an accessory gearbox." Id.
We have reviewed the paragraphs of Appellant's Specification cited
by Appellant and determine that these portions of the Specification do not
warrant reading into claim 8 the requirement of a rotational system/ ATS
disengaging from an accessory gearbox. Neither claim 1 nor claim 8 recites
an accessory gearbox, and claim 1 is directed broadly to a "method of
monitoring a rotational system." Paragraph 29, cited by Appellant, describes
one "non-limiting embodiment" and states that the peak speed "may be
defined" after the ATS 20 has disengaged from the accessory gearbox 24.
Given the expansive and non-limiting language used in paragraph 29, we are
not persuaded that use of the term "peak speed" in claim 8 justifies reading
into the claim a requirement that the rotational system is an A TS and the
peak speed is the speed after the A TS disengages from an accessory
gearbox.
In view of the foregoing, we are not informed of error in the rejection
of claim 8 under 35 U.S.C. § 103(a) as unpatentable over Feeney and
McKelvey.
3 "ATS" refers to "air turbine starter." Spec. ,r 2.
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Rejections IV-VIII
Appellant does not present arguments in support of the claims rejected
as set forth in Rejections IV-VIII beyond those argued in support of claims
1 and 8. See Br. 12-14. Thus, for the same reasons as claims 1 and 8, we
sustain the rejections of claims set forth in Rejections IV-VIII.
DECISION
We affirm the Examiner's rejection of claims 1, 3, 4, 6-9, 11, 12, 14--
19, and 23 under 35 U.S.C. § 101, and the rejections of claims 1, 3, 4, 6-9,
11, 12, 14--19, and 23 under 35 U.S.C. § 103(a). We reverse the Examiner's
rejection of claims 1, 3, 4, 6-9, 11, 12, 14--19, and 23 under 35 U.S.C.
§ 112, first paragraph.
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.
§ 1.136(a)(l )(iv).
AFFIRMED
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