Ex Parte Lucas

Patent Trial and Appeal Board

Oct 26, 2017

13304945 (P.T.A.B. Oct. 26, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/304,945 11/28/2011 Morrison R. Lucas 68178/R691 7474
92899 7590 10/30/2017
T ewis; Rnra Rnthcrerher Phrisitie T T P
EXAMINER
P.O.Box 29001
Glendale, CA 91209-9001
BARKER, MATTHEW M
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
10/30/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
pto@lrrc.com
pair_cph @ firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MORRISON R. LUCAS
Appeal 2016-002678
Application 13/304,945
Technology Center 3600
Before: CHARLES N. GREENHUT, MICHELLE R. OSINSKI, and
THOMAS F. SMEGAL, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1—
16. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2016-002678
Application 13/304,945
CLAIMED SUBJECT MATTER
The claims are directed to a method for phase unwrapping using
confidence-based rework. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method, executed by one or more computers, for
unwrapping phase wrapped distance measurement data, the
method comprising:
receiving a signal comprising phase wrapped data
including a plurality of nodes;
selecting a root node from the plurality of nodes in the
phase wrapped data;
selecting next nodes to be unwrapped, from the neighbor
nodes of the root node;
starting to unwrap said next nodes;
dynamically calculating a confidence factor for each node
being unwrapped;
when a closed loop wherein a current node can be
unwrapped from either of two previously unwrapped nodes is
encountered and unwrapped values for the current node predicted
based on each of the two previously unwrapped nodes are
different, comparing calculated confidence factors for the current
node based on the two previously unwrapped nodes;
using the compared confidence factors of the current node
to determine which one of the two previously unwrapped nodes
is an erroneous node;
reprocessing the erroneous node to correct a previous
unwrapping error to generate unwrapped data;
converting the generated unwrapped data to distance
measurement data; and
transmitting the distance measurement data.
REJECTION
Claims 1—16 are rejected under 35 U.S.C. § 101 because the claimed
invention is directed to an abstract idea.
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OPINION
The claims are argued based on claim 1 (App. Br. 3—11), which we
agree is representative. 37 C.F.R. § 41.37(c)(l)(iv).
Principles of Law
A patent may be obtained for “any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof.” 35U.S.C. § 101. The Supreme Court has consistently held that
this provision contains an important implicit exception: laws of nature,
natural phenomena, and abstract ideas are not patentable. See Alice Corp. v.
CLS Bank Inti, 134 S. Ct. 2347, 2354 (2014); Gottschalkv. Benson, 409
U.S. 63, 67 (1972) (“Phenomena of nature, though just discovered, mental
processes, and abstract intellectual concepts are not patentable, as they are
the basic tools of scientific and technological work.”). Notwithstanding that
a law of nature or an abstract idea, by itself, is not patentable, an application
of these concepts may be deserving of patent protection. See Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293—94
(2012). In Mayo, the Court stated that “to transform an unpatentable law of
nature into a patent-eligible application of such a law, one must do more
than simply state the law of nature while adding the words ‘apply it.’”
Mayo, 132 S. Ct. at 1294 (citation omitted).
In Alice, the Court reaffirmed the framework set forth previously in
Mayo “for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.” Alice, 134 S. Ct. at 2355. The first step in
the analysis is to “determine whether the claims at issue are directed to one
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Application 13/304,945
of those patent-ineligible concepts.” Id. If the claims are directed to a
patent-ineligible concept, then the second step in the analysis is to consider
the elements of the claims “individually and ‘as an ordered combination”’ to
determine whether there are additional elements that ‘“transform the nature
of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 132
S. Ct. at 1298, 1297).
In Gottschalk, the Court, citing O’Reilly v. Morse (56 U.S. 62 (1853)),
cautioned that a claim “so abstract and sweeping as to cover both known and
unknown uses” is not directed to patent-eligible subject matter under 35
U.S.C. § 101. Gottschalkv. Benson, 409 US at 68. In Alice the Supreme
Court reaffirmed this principle:
We have long held that this provision contains an important
implicit exception: Laws of nature, natural phenomena, and
abstract ideas are not patentable. We have interpreted § 101 and
its predecessors in light of this exception for more than 150 years.
We have described the concern that drives this exclusionary
principle as one of pre-emption. Laws of nature, natural
phenomena, and abstract ideas are ‘the basic tools of scientific
and technological work. [Monopolization of those tools through
the grant of a patent might tend to impede innovation more than
it would tend to promote it, thereby thwarting the primary object
of the patent laws. We have repeatedly emphasized this concern
that patent law not inhibit further discovery by improperly tying
up the future use of these building blocks of human ingenuity.
Alice Corp. Pty. Ltd. v. CLS Bank Intern., 134 S. Ct. at 2354 (quotations and
citations omitted).
Analysis
The abstract idea to which claim 1 is directed is phase unwrapping
data. Final Act. 2. The Examiner correctly determined that mathematical
algorithms, whether expressly recited in the claim or not (see App. Br. 4),
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Application 13/304,945
could be employed to perform the various steps recited. Ans. 2—3.
Appellant correctly argues that this, in and of itself, is not determinative of
eligibility. App. Br. 4. However, the Examiner has never held otherwise.
Rather, the Examiner points to the absence of any concrete structure or
manipulative steps for achieving any one of, or all of, the series of what
amounts to abstract goals, recited in claim 1. Ans. 4. Under the broad scope
of the claim, signals can be received, and data transmitted in any way, by
any means. Similarly, node selection, unwrapping, calculating confidence
factors, determining error, reprocessing, and converting can each be
accomplished with any structure and through the use of any undefined
algorithms, without limitation to that which is disclosed in the Specification.
Ans. 4. The extent of this claim is significant and elements limiting the
claim to a patent-eligible invention are lacking.
The Examiner does not dispute that algorithms can help define
structures or steps. See App. Br. 8—11; see also, e.g., Aristocrat Tech.
Australia Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir.
2008). But a well-defined algorithm consisting of a number of concrete
manipulative steps differs significantly from reciting a series of abstract
goals each, and all, of which can be achieved through some undefined series
of manipulative steps, and through the use of essentially any structure or
means. The latter “inhibit[s] further discovery by improperly tying up the
future use of these building blocks of human ingenuity.” Alice, supra
(quotation and citation omitted). Appellant’s admission that the claimed
method is applicable to a wide variety of imaging fields (App. Br. 7), none
of which have any express basis in the claim to limit its scope, is an
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argument supporting, rather than rebutting, the Examiner’s position
concerning the expansive and preemptive nature of this claim.
While we have carefully considered the claims in the cases cited by
Appellant and the PTO’s published guidelines (App. Br. 3—11), none of the
exemplary claims, exhibit as much abstraction and preemptive effect as that
currently before us. We agree with the Examiner that cases reciting concrete
structures such as robotic arms and rubber molding are clearly
distinguishable. Ans. 3^4. We additionally note that, while above, we have
discussed the premise of Appellant’s arguments based on opinions not from
our reviewing courts (App. Br. 8—11), we agree with the Examiner that such
decisions are not controlling before the PTO. Ans. 3^4.
DECISION
The Examiner’s rejection 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). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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