Ex Parte Petran et al

Patent Trial and Appeal Board

Jul 21, 2017

13411362 (P.T.A.B. Jul. 21, 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.
13/411,362 03/02/2012 Ruth L. Petran 1092-097US01 / 2863US01 3707
124175 7590 07/25/2017
Shumaker & Sieffert, P.A./Ecolab
1625 Radio Drive
Suite 100
Woodbury, MN 55125
EXAMINER
LINDSEY III, JOHNATHAN J
ART UNIT PAPER NUMBER
3629
NOTIFICATION DATE DELIVERY MODE
07/25/2017 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):
pairdocketing @ ssiplaw.com
ecolab_PAIR @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUTH L. PETRAN and BRUCE W. WHITE
Appeal 2016-003672
Application 13/411,362
Technology Center 3600
Before ALLEN R. MacDONALD, CAROLYN D. THOMAS, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
SZPONDOWSKI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—3 and 7—19. Claims 4—6 have been cancelled.
App. Br. 3. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2016-003672
Application 13/411,362
STATEMENT OF THE CASE
Appellants’ invention is directed to “analysis of foodbome illness
outbreaks,” and in particular to systems and methods “that analyze health
department inspection data with respect to foodbome illness outbreaks.”
Spec. 2, 4. Claim 1, reproduced below, is representative of the claimed
subject matter:
1. A method comprising:
receiving, by a computing device, inspection data from a
plurality of outbreak restaurants that each experienced at least one
associated foodbome illness outbreak;
receiving, by the computing device, inspection data from a
plurality of non-outbreak restaurants that did not experience any
foodbome illness outbreaks;
storing, by a storage device, a mapping that relates the
inspection data from the plurality of outbreak restaurants to a
standardized set of survey questions, the mapping for each outbreak
restaurant further indicative of whether or not the outbreak restaurant
experienced a violation for each one of the standardized set of survey
questions;
storing, by the storage device, a mapping that relates the
inspection data from the plurality of non-outbreak restaurants to the
standardized set of survey questions, the mapping for each non­
outbreak restaurant further indicative of whether or not the outbreak
restaurant experienced a violation for each one of the standardized set
of survey questions;
identifying, by the computing device, a set of one or more
indicative violations, each of the one or more indicative violations
corresponding to one of the standardized set of survey questions that
are statistically more likely to be associated with the outbreak
restaurants than the non-outbreak restaurants based on the inspection
data received from the plurality of outbreak restaurants and the
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Application 13/411,362
inspection data received from the plurality of non-outbreak
restaurants;
storing, by the storage device, an outbreak profile continuum
that relates a number of indicative violations experienced by a
hypothetical restaurant with one of a plurality of ratings
corresponding to a relative degree to which the hypothetical restaurant
resembles an outbreak restaurant, the outbreak profile continuum
based on how many of the plurality of outbreak restaurants
experienced each of the one or more indicative violations and based
on how many of the plurality of non-outbreak restaurants experienced
each of the one or more indicative violations;
determining, by the computing device and based on inspection
data received for a particular restaurant, a position on the outbreak
profile continuum for the particular restaurant based on a total number
of the one or more indicative violations experienced by the particular
restaurant; and
generating, by the computing device, a report including the
position on the outbreak profile continuum for the particular
restaurant.
REJECTIONS
Claims 1—3 and 7—19 stand rejected under 35 U.S.C. § 101 as directed
to non-statutory subject matter.
Claims 1, 2, 7—10, 12, 15, 16, 18, and 19 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over the combination of Hnatio
(US 2012/0123822 Al; published May 17, 2012), Miguel A. Cruz et al., An
Assessment of the Ability of Routine Restaurant Inspections to Predict Food-
Borne Outbreaks in Miami-Dade County, Florida, 91 American Journal of
Public Health 821-822 (2001) (“Cruz”), Chapus (US 2005/0183002 Al;
published Aug. 18, 2005), and Federal/Provincial/Territorial Committee on
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Food Safety Policy, Risk Categorization Model for Food Retail/Food
Service Establishments, Second Edition (2007) (“RCM”).
Claims 3, 11, 13, 14, and 17 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Hnatio, Cruz, Chapus, RCM,
and Official Notice.
ANALYSIS
35 U.S.C. § 101 Rejections
Alice Corp. Pty. Ltd. v. CLSBanklnt’l, 134 S. Ct. 2347 (2014)
identifies a two-step framework for determining whether claimed subject
matter is judicially-excepted from patent eligibility under 35 U.S.C. § 101.
In the first step, “[w]e must first determine whether the claims at issue are
directed to a patent-ineligible concept.” Alice, 134 S. Ct. at 2355.
The Examiner concludes the claims are directed to the abstract idea of
modeling the relative risk of an event, which comprises a series of
mathematical steps. Final Act. 2—3.
Appellants argue the Examiner does not “provid[e] the requisite
clearly articulated reasoning as to why the claimed invention is not eligible”
and “merely makes [a] conclusory statement.” App. Br. 8. We disagree.
We agree with the Examiner that claims 1—3 and 7—19 are directed to
the abstract idea of modeling the relative risk of an event. See Final Act. 2—
3; Ans. 3—A. Here, the claims involve nothing more than receiving, storing,
and analyzing data, activities that fit squarely within the realm of abstract
ideas. See Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1353
(Fed. Cir. 2016) (“collecting information, analyzing it, and displaying
certain results of the collection and analysis” are directed to an abstract
idea); PerkinElmer, Inc. v. Interna Ltd., 496 F. App’x 65, 70 (Fed. Cir. 2012)
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(non-precedential) (considering claims directed to “[a] method of
determining whether a pregnant woman is at an increased risk of having a
fetus with Down’s syndrome” including steps of assaying a sample for and
measuring a screening marker and determining the risk based on a
comparison to known statistical measures). In Perkins Elmer, the Court also
noted: “The claims . , . recite the mental process of comparing data to
determine a risk level: data are gathered in the first trimester of pregnancy;
data are gathered in the second trimester of pregnancy; those data are
compared to known statistical information. No action beyond the
comparison is required.” Id. Similarly, the mathematical steps here used to
analyze the data and position it on the outbreak profile continuum without
more, is a mental process within the abstract-idea category. See Electric
Power, 830 F.3d at 1353—54 (collecting information and “analyzing
information by steps people go through in their minds, or by mathematical
algorithms, without more, [are] essentially mental processes within the
abstract-idea category.”) Moreover, Appellant has not adequately shown the
claims are not directed to an abstract idea.
In the second step of Alice, 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.” Alice, 134 S. Ct. at 2355 (quoting Mayo Collaborative
Services v. Prometheus Laboratories, Inc., 132 U.S. S Ct. 1289, 1297—1298
(2012)). 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. (quoting Mayo, 132 S. Ct. at 1294).
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Appellants argue the invention in claims 1 and 15 “recite[s] specific
limitations other than what is well-understood, routine, and conventional in
the field, confine[s] the claims to a particular useful application, and show[s]
an improvement in another technology or technical field.” App. Br. 10, 13.
Appellants further argue the claimed outbreak profile continuum is
“significant.” Id. at 11—13.
We are not persuaded by Appellants’ arguments and agree with the
Examiner’s findings and conclusions. See Final Act. 3; Ans. 4—9.
Appellants have not adequately explained how or provided persuasive
evidence to show why the claims are performed such that they are not
routine and conventional functions of a generic computer.
We agree with the Examiner that the limitations are “instructions to
implement the abstract idea on a computer and require nothing more than a
generic computer to perform generic computer functions that are well-
understood, routine, and conventional activities previously known to the
industry.” Final Act. 3. Appellants have not directed our attention to
anything in the record that shows, nor can we find, any specialized computer
hardware or other “inventive” computer components are required. See Spec.
24, 93, 101, 102, 25, Fig. 1. Rather than reciting additional elements that
amount to “significantly more” than the abstract idea, pending claims, at
best, add only a “computing device,” “s ce,” “database,” and/or
“processor,” i.e., generic components (see Spec, ■flf 24, 93, 101, 102, 25, Fig.
1), which does not satisfy the inventive concept. See, e.g., DDR Holdings,
LLCv. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (internal
quotation marks omitted) (“[A]fter/l//ce', there can remain no doubt:
recitation of generic computer limi tations does not make an otherwise
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ineligible claim patent-eligible. The bare fact that a computer exists in
physical rather than purely conceptual realm is beside the point.”).
The claims, when viewed as whole, are nothing more than performing
conventional processing functions that courts have routinely found
insignificant to transform an abstract idea into a patent-eligible invention.
As such, the claims amount to nothing significantly more than an instruction
to implement the abstract idea on a generic computer — which is not enough
to transform an abstract idea into a patent-eligible invention. See Alice, 134
S. Ct. at 2360. Accordingly, we sustain the Examiner’s 35 U.S.C. § 101
rejection of claims 1—3 and 7—19.
35 U.S.C. § 103(a) Rejections
Issue 1: Did the Examiner err in finding the combination of Hnatio,
Cruz, Chapus, and RCM teaches or suggests “determining, by the computing
device and based on inspection data received for a particular restaurant, a
position on the outbreak profile continuum for the particular restaurant based
on a total number of the one or more indicative violations experienced by the
particular restaurant,” as recited in independent claim 1 and commensurately
recited in independent claim 15?
Appellants argue “RCM is not intended to serve as an in-depth
inspection procedure to assess compliance with jurisdictional requirements
and determine appropriate enforcement activities.” App. Br. 15, citing RCM
at p. 6, emphasis omitted. According to Appellants, “[ajlthough RCM
describes ‘determining if an establishment poses a ‘high, ‘moderate[,]’ or
Tow risk[,]’ ‘this is for purposes of allowing ‘a manager [to] determine the
resource requirements for a given period of time.’” App. Br. 15. Appellants
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further argue “none of the questions on the RCM Risk Categorization
Questionnaire are designed to obtain, nor do they obtain, actual ‘inspection
data received for a particular restaurant’ that includes ‘a total number of the
one or more indicative violations experienced by the particular restaurant.’”
App. Br. 16.
We are not persuaded by Appellants’ arguments. Appellants’
arguments do not address the combination of references as relied upon by
the Examiner. See, e.g., App. Br. 15—16; Reply Br. 6—8. Nonobviousness
cannot be established by attacking the references individually when the
rejection is predicated upon a combination of prior art disclosures. See In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The Examiner relies on
the combination of Hnatio and Cruz to teach or suggest the “inspection data
received for a particular restaurant” and relies on RCM as disclosing a risk
category chart. See Final Act. 4—5; Ans. 9—10. The Examiner finds
[t]he Hnatio, Cruz, Chapus, and RCM references may be
combined such that the knowledge engine disclosed by Hnatio
receives an inspection report for a particular restaurant (i.e., the
situational data depicted in Hnatio Figure 1) and places the
restaurant in a High, Moderate or Fow Risk category based on
the number of indicative violations or score as taught by RCM.
Final Act. 8.
During prosecution, claims are given their broadest reasonable
interpretation consistent with the Specification as they would be understood
by one of ordinary skill in the art. In re Am. Acad, of Sci. Tech Ctr., 367
F.3d 1359, 1369 (Fed. Cir. 2004). The Examiner interprets the claimed
“outbreak profile continuum” as “a set of relative risk categories that are
defined by the number of indicative violations found at a restaurant (or its
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total inspection score) after an inspection is conducted.” Ans. 9, citing Spec.
Table 13; see also Final Act. 7—8. Appellants do not persuasively rebut the
Examiner’s interpretation, nor do Appellants proffer a countering
interpretation of the term “outbreak profile continuum.” Rather, Appellants
recite the claim language, which states
an outbreak profile continuum that relates a number of
indicative violations experienced by a hypothetical restaurant
with one of a plurality of ratings corresponding to a relative
degree to which the hypothetical restaurant resembles an
outbreak restaurant, the outbreak profile continuum based on
how many of the plurality of outbreak restaurants experienced
each of the one or more indicative violations and based on how
many of the plurality of non-outbreak restaurants experienced
each of the one or more indicative violations.
See Reply Br. 6—7, citing claims 1 and 15. In addition, Appellants’
Specification describes “[t]he outbreak profile continuum may relate a
number of indicative violations experienced by a hypothetical restaurant
with the degree to which that hypothetical restaurant looks like, or fits the
profile of, an outbreak restaurant.” Spec. 1 60; see also Spec. 1 87. The
Specification further states “a relatively lower rating on the continuum may
be associated with few or no indicative violations, and a higher rating on the
continuum may be associated with a relatively higher number of failures on
the indicative violations.” Spec. 1 85; see Spec. Table 13. We are not
persuaded the Examiner’s interpretation is unreasonable under the broadest
reasonable interpretation in light of the claim language and the disclosure in
the Specification.
RCM describes “determining if an establishment poses a ‘high’,
‘moderate’[,] or Tow’ risk.” RCM p. 6. RCM further states “[i]t should be
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used as a complement to existing inspection procedures to evaluate the
overall risk, based on current conditions at the time of the visit as well as
previous conditions or incidents since the last evaluation took place.” Id.
We agree with the Examiner (Ans. 9—11) that this disclosure, in combination
with the disclosure in Hnatio and Cruz, teaches or suggests the disputed
limitation.
Issue 2\ Did the Examiner err in finding the combination of Hnatio,
Cruz, and Chapus teaches or suggests
identifying, by the computing device, a set of one or more
indicative violations, each of the one or more indicative
violations corresponding to one of the standardized set of
survey questions that are statistically more likely to be
associated with the outbreak restaurants than the non-outbreak
restaurants based on the inspection data received from the
plurality of outbreak restaurants and the inspection data
received from the plurality of non-outbreak restaurants,
as recited in independent claim 1 and commensurately recited in
independent claim 15?
The Examiner relies on the combination of Hnatio, Cruz, and Chapus
to teach or suggest the disputed limitation. Final Act. 6—7. Appellants argue
Cruz’s Table 1 “does not teach or suggest ‘identifying a set of one or more
indicative violations’,” but instead “merely lists various restaurant
characteristics . . . and shows the calculated MOR . . . along with the 95%
confidence interval... for each listed characteristic.” App. Br. 17.
We are not persuaded by Appellants’ arguments. Initially, we note
Appellants argue the Cruz reference in isolation, rather than as combined
with Hnatio and Chapus, as set forth in the rejection. See Final Act. 6—7.
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However, even aside from that, Appellants’ arguments regarding the
disclosure in Cruz are not persuasive. Table 1 of Cruz describes
“[characteristics [mjeasured in 51 [rjestaurants [w]ith [outbreaks and 76
[rjestaurants [w]ith [n]o [rjeported [ojutbreaks in 1995,” “% of [rjestaurants
[w]ith/[w]ithout [ojutbreaks,” “[matched odds ratio] for association of
[characteristic [w]ith [ojutbreak,” and “95% [cjonfidence [ijnterval.”
Although Cruz states “[tjhe results of this study suggest that restaurant
inspections in Miami-Dade County do not reliably identify restaurants that
are at increased risk of outbreaks of food-borne illness,” it also states “1 of
12 critical violations, evidence of vermin, was associated with outbreaks in
this study.” Cruz p. 822. Moreover, Cruz discusses the Seattle-King County
study, which “found an association between outbreaks and (1) a restaurant’s
overall inspection rating, (2) the presence of any critical violations, (3) the
presence of any of 3 individual violations, including food protection
practices[.]” Id. Cruz further discusses potential reasons for the differences
in the two studies’ findings. Id.
Given the foregoing disclosure in Cruz, we agree with the Examiner
(Ans. 11—12) that Cruz, as combined with Hnatio and Chapus, teaches, or at
least suggests, the disputed limitation. See In re Keller, 642 F.2d 413, 425
(CCPA 1981) (“the test [for obviousness] is what the combined teachings of
[the] references would have suggested to those of ordinary skill in the art.”)
For the foregoing reasons, we are not persuaded the Examiner erred in
rejecting independent claims 1 and 15 under 35 U.S.C. § 103(a). For the
same reasons, we are not persuaded the Examiner erred in rejecting
dependent claims 2, 7—10, 12, and 16, which were not separately argued.
With regard to claims 3, 11, 13, 14, and 17, Appellants argue for the first
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time in the Reply Brief that the Examiner’s taking of Official notice is
improper. Reply Br. 8—9. We find this argument is not responsive to any
new findings of fact or grounds of rejection in the Examiner’s Answer.
Final Act. 11—14. As a result, Appellants have waived such untimely
argument. Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010)
(informative). We, therefore, sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of claims 3, 11, 13, 14, and 17 for the same reasons.
DECISION
The Examiner’s 35 U.S.C. § 101 rejection of claims 1—3 and 7—19 is
affirmed.
The Examiner’s 35 U.S.C. § 103(a) rejection of claims 1—3 and 7—19
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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