Ex Parte Remme et al

Patent Trial and Appeal Board

Dec 21, 2018

11556842 (P.T.A.B. Dec. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/556,842 11/06/2006
32425 7590 12/26/2018
NORTON ROSE FULBRIGHT US LLP
98 SAN JACINTO BOULEVARD
SUITE 1100
AUSTIN, TX 78701-4255
FIRST NAMED INVENTOR
Kaare J. Remme
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.
REMK:003US/10311587 9449
EXAMINER
PIERRE LOUIS, ANDRE
ART UNIT PAPER NUMBER
2127
NOTIFICATION DATE DELIVERY MODE
12/26/2018 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):
aoipdocket@nortonrosefulbright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAARE J. REMME, DAVID A. NICOSIA,
KELLY D. HENDRICK, DANIEL C. MITCHELL, and
CYNTHIA A. CASTLE 1
Appeal2017-002356
Application 11/556,842
Technology Center 2100
Before BRADLEY W. BAUMEISTER, KEVIN W. CHERRY and ADAM
J. PYONIN, Administrative Patent Judges.
BAUMEISTER, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-7 and 9-20. App. Br. 4; Reply Br. 3.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants list The Remme Corporation as the real party in interest.
Appeal Brief 1, filed March 10, 2016 ("App. Br.").
2 Rather than repeat the Examiner's positions and Appellants' arguments in
their entirety, we refer to the above-mentioned Appeal Brief, as well as the
following documents, for their respective details: the Final Action mailed
May 1, 2015 ("Final Act."); the Examiner's Answer mailed September 26,
2016 ("Ans."); and the Reply Brief filed November 23, 2016 ("Reply Br.").
Appeal2017-002356
Application 11/556,842
STATEMENT OF THE CASE
Appellants describe the present invention as being directed to methods
and a modeling tool "for managing rangeland in a consistent, repeatable and
quantitative manner." Abstract. With use of the invention, "[l]and use
policy may ... be established[] for grazing, hunting, recreation, and other
uses." Id. Independent claim 1 illustrates the claimed invention:
1. A method comprising:
creating a geospatial model of land, the model including
datasets of road network and plant community boundaries;
selecting forage observation locations and forage analysis
routes within said land, based upon calculations of the datasets
in the geospatial model;
establishing forage limiting attributes and area limiting
attributes for each forage observation location;
establishing a relative spatial extent of land associated
with each forage observation location;
observing an amount of forage at each forage observation
location;
calculating a measured forage based on the difference
between the amount of observed forage at each forage
observation location and respective forage limiting attributes;
calculating a net relative spatial extent of land based on a
difference between the relative spatial extent of land at each
forage observation location and respective area limiting
attributes; and
calculating, with a processing device, a forage inventory
based on the respective measured forage and net relative spatial
extent of land associated with each forage observation location.
The Examiner rejected claims 1-7 and 9-under 35 U.S.C. § I03(a) as
being unpatentable over Robbins (US 2006/0112889 Al; published June 1,
2006) and White et al., "How Much Forage Do You Have?" TEXAS
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AGRICULTURAL EXTENSION SERVICE, THE TEXAS A & M UNIVERSITY
SYSTEM, 1995 ("White"). Final Act. 4--8.
The Examiner subsequently rejected claims 1-7 and 9-20 in the
Examiner's Answer under 35 U.S.C. § 101 as additionally being directed to
patent-ineligible subject matter. Ans. 2-3.
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010)
(precedential).
THE§ 101 REJECTION
Summary
The Examiner determines that the claims are directed to patent-
ineligible abstract ideas without reciting significantly more. Ans. 2-3. The
Examiner additionally finds that claims 10-13 are broad enough to read on
non-statutory transitory computer readable media. Id. at 3 ( citing Spec. 9:9-
10). Appellants argue that the claims are not directed to abstract ideas under
step one of the Alice/Mayo test (Reply Br. 4--6), that the claims recite
significantly more than abstract ideas (id. at 7-9), and that claims 10-13 are
limited to non-transitory media (id. at 6). We address these various
arguments below seriatim.
Principles of Law
Under 35 U.S.C. § 101, a patent may be obtained for "any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof." The Supreme Court has "long held that
this provision contains an important implicit exception: Laws of nature,
natural phenomena, and abstract ideas are not patentable." Alice Corp. v.
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CLS Bankint'l, 134 S. Ct. 2347, 2354 (2014) (quotingAss'nfor Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
Accordingly, in applying the§ 101 exception, the Supreme Court cautioned:
[W]e must distinguish between patents that claim the
"'buildin[g] block[ s] '" of human ingenuity and those that
integrate the building blocks into something more, thereby
"transform[ing]" them into a patent-eligible invention. The
former "would risk disproportionately tying up the use of the
underlying" ideas, and are therefore ineligible for patent
protection. The latter pose no comparable risk of pre-emption,
and therefore remain eligible for the monopoly granted under our
patent laws.
Alice, 134 S. Ct. at 2354--55 (all brackets in original except first set)
(internal citations omitted).
In Alice, the Supreme Court has set forth an analytical "framework for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts." Id. at 2355 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 71-73 (2012)). In the first step of the analysis, we
determine whether the claim at issue is "directed to" a judicial exception,
such as an abstract idea. Id. at 2355. If not, the inquiry ends. Thales
Visionix Inc. v. U.S., 850 F.3d 1343, 1346 (Fed. Cir. 2017); Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016). If the claim is
determined to be directed to an abstract idea, then we consider under step
two whether the claim contains an "inventive concept" sufficient to
"transform the nature of the claim into a patent-eligible application." Alice,
134 S. Ct. at 2355 (quotations and citation omitted).
In considering whether a claim is directed to an abstract idea under
step one, we acknowledge, as did the Supreme Court, that "all inventions at
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some level embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas." Mayo, 566 U.S. at 71. We therefore look to
whether the claim focuses on a specific means or method that improves the
relevant technology or is instead directed to a result or effect that, itself, is
the abstract idea and merely invokes generic processes and machinery. See
Enfish, 822 F.3d at 1336.
In the second step of the Alice analysis, if applicable, we must
consider whether the claim contains an element or a combination of
elements that is sufficient to transform the nature of the claim into a patent-
eligible application. Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 714
(Fed. Cir. 2014); Alice, 134 S. Ct. at 2355.
In applying step two of the Alice analysis, we must
"determine whether the claim[] do [es] significant! y more than
simply describe [the] abstract method" and thus transform the
abstract idea into patentable subject matter. We look to see
whether there are any "additional features" in the claim[] that
constitute an "inventive concept," thereby rendering the claim[]
eligible for patenting even if [it is] directed to an abstract idea.
Those "additional features" must be more than "well-understood,
routine, conventional activity."
Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1328 (Fed.
Cir. 2017) ( citations omitted). A claim that "merely require[ s] generic
computer implementation[] fail[ s] to transform [an] abstract idea into a
patent-eligible invention." Alice, 134 S. Ct. at 2357.
Central to our analysis herein is the fundamental principle that the
Alice framework must be applied to the claims, as properly construed. As
our reviewing court has stated, "The § 101 inquiry must focus on the
language of the Asserted Claims themselves." Synopsys, Inc. v. Mentor
Graphics Corp., 839 F.3d 1138, 1149 (Fed. Cir. 2016); see also Accenture
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Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1345
(Fed. Cir. 2013) (admonishing that "the important inquiry for a§ 101
analysis is to look to the claim"); Content Extraction & Transmission LLC v.
Wells Fargo Bank, Nat'! Ass 'n, 776 F.3d 1343, 1346 (Fed. Cir. 2014)
(focusing on "whether the claims of the asserted patents fall within the
excluded category of abstract ideas") ( emphasis added)).
These principles are based on long-established jurisprudence that "[i]t
is the claims [that] define the metes and bounds of the invention entitled to
the protection of the patent system." In re Warmerdam, 33 F.3d 1354, 1360
(Fed. Cir. 1994) (citing Zenith Labs., Inc. v. Bristol-Myers Squibb Co., 19
F.3d 1418, 1424 (Fed. Cir. 1994)).
Contentions and Analysis
I.
Appellants argue that the present invention is not directed to a patent-
ineligible abstract idea because the invention allegedly "provide[ s] a
technical process for rangeland forage management that uses specific
attributes of land under management to set physical forage observation
locations which, in tum, are used to provide accurate physical forage
estimates." Reply Br. 2.
We disagree with Appellants' characterization of the invention as
being a technical process. We instead agree with the Examiner that the
invention entails "surveying a model of a land and obtaining forage
inventory data." Ans. 2. More specifically, Appellants' invention entails
creating models, selecting model parameters, and performing mathematical
calculations to determine forage inventory estimates. See, e.g., claim 1.
Accordingly, we agree with the Examiner that the invention is directed to
methods of organizing human activities and performing mathematical
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relationships. Ans. 2. The courts have interpreted such activities as
constituting abstract ideas. See MPEP § 2106.04(a)(2) Parts (II}-(IV).
It is immaterial to our analysis herein whether certain acts of
managing rangeland reasonably may be interpreted as constituting a
technological process. The independent claims do not recite actually
performing any physical rangeland-management acts. See claims 1, 10, and
14. Claim 1 only recites a method of creating the model and calculating
inventory estimates-preliminary planning steps that are undertaken prior to
actually carrying out any physical land-management acts. Claim 10 recites a
computer readable medium effectively for performing the steps recited in
claim 1. Claim 14 is similar in scope to claim 1, but further recites
establishing a livestock grazing policy. Even with respect to claim 14,
Appellants do not provide a basis for concluding that establishing a policy
constitutes a physical or technological process, let alone a non-abstract
process. See generally Reply Br. As such, Appellants' reliance on cases
such as McR03 and Enfzsh (Reply Br. 5) are unpersuasive because those
cases, dealing with improvements to technologies, are not on point.
Appellants also argue the claims are not directed to any abstract idea
because "the claimed methods are limiting, and do not purport to cover all
methods of rangeland management." Reply Br. 6. This argument is
unpersuasive.
We recognize that the Supreme Court has described "the concern that
drives this exclusionary principle [i.e., the exclusion of abstract ideas from
patent eligible subject matter] as one of pre-emption." See Alice, 134 S. Ct.
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at 2354. However, characterizing preemption as a driving concern for patent
eligibility is not the same as characterizing preemption as the sole test for
patent eligibility. As our reviewing court has explained: "[t]he Supreme
Court has made clear that the principle of preemption is the basis for the
judicial exceptions to patentability" and "[f]or this reason, questions on
preemption are inherent in and resolved by the§ 101 analysis." Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)
(citing Alice Corp., 134 S. Ct. at2354). Although "preemption may signal
patent ineligible subject matter, the absence of complete preemption does
not demonstrate patent eligibility." Id.
II.
We now tum to step two of the Alice inquiry. Appellants argue in that
regard,
the claims on appeal are not merely routine steps and the claims
include specific steps for managing rangeland using physical
attributes of the land in combination with physical observations
and forage measurements, to provide a repeatable, technical
solution to the technical problem of rangeland management, as
recited in claims 1-7 and 9-20 presently on appeal.
Reply Br. 9. Appellants further argue that the Examiner has not provided
any analysis of the prior art to find that the claimed rangeland management
technique is routine activity. Id. at 8-9.
This argument is unpersuasive because, as explained above, the
independent claims do not include any physical step of actually managing
rangeland. The claims only recite preliminary planning steps of creating a
survey model, selecting model parameters, and calculating inventory
estimates. As such, the claims are not directed to a technological
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improvement or solution, but, instead, are directed to a combination of
abstract ideas.
The only language of claim 1 that is directed to a technological
element beyond the abstract idea is the requirement of the final limitation
that the abstract idea of mathematically calculating the forage inventory be
performed "with a processing device." See claim 1. The Examiner finds
that the claims encompass general purpose computers because
[t]he claims are silent as to how a computer aids the method, the
extent to which a computer aids the method, or the significance
of a computer to the performance of the method. Simply adding
a computer aided limitation to a claim covering an abstract
concept, without more, is insufficient to render the claim patent
eligible.
Ans. 2-3.
Appellants set forth insufficient evidence for why "a processing
device," as claimed, necessarily entails any technological improvement to a
computer. See generally Reply Br. 3-9. Appellants' lack of restrictions or
limitation in the claim or Specification on what constitutes "a processing
device," instead, implicitly indicates that the forage inventory calculations
can be performed with the human mind, a conventional computer or even a
handheld calculator. See Credit Acceptance Corp. v. Westlake Servs., 859
F.3d 1044, 1056-57 (Fed. Cir. 2017) (indicating that the claims' failure to
provide details as to any non-conventional software can serve as a factor in
determining whether the claims recite significantly more than an abstract
idea or "simply instruct the practitioner to implement the abstract idea ... on
a generic computer.").
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III.
The Examiner separately rejects claims 10-13 under§ 101 because
"claims 10-13 appear to provide a computer readable medium; however,
page 9[,] lines 9-10[,] of the [S]pecification describe[] the medium to
includes any other type of medium and that this open-ended definition of a
medium could include both transitory and non-transitory medium; and
therefore [sic] nonstatutory." Ans. 2-3.
Appellants argue that they disclaim coverage of the non-statutory
subject matter: "To clarify these claims, Appellants hereby admit that claims
10-13 cover only non-transitory media and do not cover transitory media,
and understand that this admission, as part of the intrinsic record, will be
used to limit the scope of these claims in any claim construction procedure
in the future." Reply Br. 6.
Appellants also previously amended their Specification in order to
exclude transitory signals. The amended passage of the Specification reads
as follows:
As is known in the art, a computer readable medium may
be associated with a computer, a computer file, a software
package, a hard drive, a floppy, a CD-ROM, a hole-punched
card, an instrument, an ASIC, firmware, a "plug-in" for other
software, web-based applications, RAM, ROM, or any other type
of tangible computer readable medium. This list is not by way
of limitation.
Amendment to Spec. 9:6-10, filed January 25, 2010 (emphasized with
underlining to indicated added text and strikethroughs to indicate deleted
text).
We need not decide whether either Appellants' amendment to the
Specification or their disclaimer in the Reply Brief of the noted subject
matter is a sufficient substitute for amending claims 10-13 to expressly state
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that the recited computer readable media is limited to non-transitory media.
The amended Specification still defines computer readable media as
including "a 'plug-in' for other software." Spec. 9:8. A general purpose
dictionary defines a plug-in as "[a]n accessory software or hardware package
that is used in conjunction with an existing application or device to extend
its capabilities or provide additional functions." Plug-in Definition, The
American Heritage Science Dictionary (2011 ),
https://www.dictionary.com/browse/plug-in?s=t (last visited December 18,
2018). As such, claims 10-13 still are directed to non-statutory subject
matter because they encompass software per se. "Abstract software code is
an idea without physical embodiment .... " Microsoft Corp. v. AT&T
Corp., 550 U.S. 437, 449 (2007).
For the foregoing reasons, Appellants have not persuaded us that the
Examiner erred in rejecting independent claims 1, 10, and 14 as being
directed to patent-ineligible subject matter. We, therefore, sustain the
rejection under 35 U.S.C. § 101 of these claims and also the rejection of
dependent claims 1-7 and 9-20, which Appellants do not argue separately.
See Reply Br. 3-9.
THE§ 103 REJECTION
Examiner Findings
The Examiner finds that Robbins teaches a method that includes
(1) creating a geospatial model of land and (2) selecting forage observation
locations and forage analysis routes within the land based upon calculations
of the datasets in the geospatial model. Final Act. 4--5. The Examiner finds
that White teaches a method that includes the remaining limitations of
claim 1, for example, including establishing forage limiting attributes and
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area limiting attributes for each forage observation location, establishing a
relative spatial extent of land associated with each forage observation
location, observing an amount of forage at each forage observation location,
calculating a measured forage, calculating a net relative spatial extent of
land, and calculating a forage inventory. Id. at 5-6. The Examiner
concludes that it would have been obvious "to combine [White's] forage
calculation system ... with [Robbins's' g]razing method ... because
[White] teaches the improvement of stocking rate and help avoid overuse or
underuse of forage." Id. at 6 (citing White, p. 1, col. 2, ,r 2).
Appellants present multiple arguments in relation to the cited art. We
address the arguments seriatim.
Contentions and Analysis
Appellants argue that Robbins is completely inapplicable to the
invention because "Robbins discloses a weed control method that modifies
the natural foraging habits of ungulates," but does not disclose the claimed
selection of observation locations or analysis routes. App. Br. 4--5. This
argument is unpersuasive. As explained by the Examiner, Robbins is relied
on for teaching unremarkable concepts such as using a map ( a geospatial
model of land that includes datasets of road network and plant community
boundaries) to determine observation locations, and that the map includes
information about a network of roads that can be used to access the
observation locations. Final Act. 4--5 ( citing, e.g., Robbins ,r 64).
Appellants argue that Robbins does not disclose the claimed
"calculating" steps. Final Act. 6. This argument is unpersuasive because the
Examiner relies on White-not Robbins-for teaching the calculating steps.
Appellants argue that "White does not cure the failings of Robbins"
because "White does not disclose the claimed selection of observation
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locations or analysis routes." This argument is unpersuasive because
regardless of what White teaches regarding observation locations, the
Examiner relies on Robbins-not White-for teaching the steps of creating
a geospatial model and selecting forage observations locations and forage
analysis routes.
Appellants argue that White does not disclose the claimed
"calculating" steps because White does not disclose calculating a measured
forage, calculating a net relative spatial extent of land, or calculating a
forage inventory. App. Br. 7-8. Appellants also argue that "nowhere in
White is there a disclosure or suggestion of and of [sic] the claimed
calculating steps performed for each observation location." Id. at 8.
Addressing the last argument first, Appellants' argument is
unpersuasive because White expressly states that the forage survey is
conducted for multiple range sites. White 2, ,r,r 1, 2. See also id. at 3, ,r 6
( setting forth a step of"[ s ]um[ ming] all range sites per pasture to determine
pounds of forage per pasture").
Turning to the various calculations, White teaches calculating a
measured forage for each range site that is based on a difference between the
amount of observed forage at each location and respective forage limiting
attributes. E.g., id. at 3, ,r 7 ( explaining that measured forage is multiplied
by a forage management factor 0.25). White teaches calculating a net
relative spatial extent of land. E.g., id. at 2, ,r 1 ( explaining grazing
calculations are based on the total grazable acreage minus non-grazable
acreage) ( cited in Ans. 4 ). White teaches calculating a forage inventory
based on the respective measured forage and net relative spatial extent of
land associated with each forage observation location. Id. at 3, ,r 6 ("The
forage supply per range site per pasture is determined by multiplying the
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grazable acres by the corrected average pounds per acre of forage. Sum all
range sites per pasture to determine the total pounds of forage per pasture").
Appellants argue,
[ r] ather than taking into account the detailed parameters required
by the claimed invention when estimating forage availability,
White assumes that a constant 25% of forage in an entire
rangeland is available to be eaten by livestock (White, page 3,
numbered paragraph 7), and does not disclose or suggest the use
of forage availability at each observation location, as required by
the presently claimed invention.
Reply Br. 11.
Id.
Appellants continue,
White, using a constant percentage, simply cannot accommodate
[forage-availability] variability. In contrast, the presently
claimed invention establishes and uses "forage limiting
attributes" and "area limiting attributes," "for each observation
location" [emphasis added], which permits the presently claimed
invention to accommodate site specific variability that may vary
throughout an entire grazing land. The presently claimed
invention thus provides a method of calculating forage
inventories on a much more granular level (i.e., at each
observation location as opposed to over and entire rangeland) than
that proposed by White, which makes estimates over an entire
rangeland without regard to local factors existing at each of the
observation locations. This is a critical distinction between the
forage calculating steps of the presently claimed invention and the
teachings of White, and it's a distinction that has been completely
glossed over by the Examiner.
This argument is unpersuasive because it is not commensurate in
scope with the claim language. To be sure, claim 1, for example, sets forth
that the measured-forage calculations are based on the "respective forage
limiting attributes" and that the calculations of the net relative spatial extents
are based on "respective area limiting attributes." Claim 1 ( emphasis
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added). But the claims do not require that these respective attributes
necessarily be distinct or different from one range-site location to the next.
That is, the claims currently are written broadly enough to read on a
situation, such as White's, in which a single factor of 0.25 is applicable as
the forage limiting attributes of each range site.
Appellants also argue that "Robbins and White cannot be permissibly
combined under 35 U.S.C. § 103(a)." App. Br. 10. According to
Appellants, Robbins and White are directed to disparate, non-analogous
fields of technology: Robbins is directed to weed control, while White
addresses rudimentary forage estimates. Id. Appellants also argue Robbins
and White teach away from each other by very virtue of their fields and
purposes. Id. Appellants also argue that the Examiner does not support the
assertion that the two references share model similarities, and that "neither
of the references suggest any apparent reason to combine their teachings,
and no basis for a reasonable expectation of success in arriving at the claims
of the present invention can be found." Id.
These arguments are unpersuasive because they are based on the
inaccurate premise that the references are being combined based on the
similarity of the goals of their underlying models. We understand the
Examiner to be combining the references for a broader purpose-to teach
that carrying out a forage inventory, as taught by White, can be aided by first
creating a geospatial model ( or providing a map depicting roads in the
vicinity of the forage area) and selecting observations for the forage
inventory based on calculations ( or mental analysis) of the map, as taught by
Robbins. See, e.g., Ans. 5. "The test for obviousness is not whether the
features of a secondary reference may be bodily incorporated into the
structure of the primary reference. . . . Rather, the test is what the combined
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teachings of those references would have suggested to those of ordinary skill
in the art." In re Keller, 642 F.2d 413,425 (CCPA 1981).
For the foregoing reasons, Appellants have not persuaded us of error
in the Examiner's obviousness rejection of independent claims 1, 10, and 14.
Accordingly, we sustain the Examiner's rejection of these claims, as well as
dependent claims 2-7, 9, 11-13, and 15-20, which Appellants do not argue
separately. See App. Br. 4--12; Reply Br. 9-12.
CONCLUSIONS
Appellants have not shown that the Examiner erred in rejecting claims
1-7 and 9-20 under§ 101.
Appellants have not shown that the Examiner erred in rejecting claims
1-7 and 9-20 under§ 103.
DECISION
The Examiner's decision rejecting claims 1-7 and 9-20 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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