Ex Parte Schweitzer et al

Patent Trial and Appeal Board

Feb 21, 2018

14486921 (P.T.A.B. Feb. 21, 2018)

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.
14/486,921 09/15/2014 Edmund O. Schweitzer III 13-016.1 1120
63023 7590 02/23/2018
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EXAMINER
Law Department
2350 NE HOPKINS COURT
PARK, HYUN D
PULLMAN, WA 99163-5603 ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
02/23/2018 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):
IPMail @ selinc .com
Rick_Edge @ selinc. com
rosemary_fitzgerald @ selinc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL
AND APPEAL BOARD
Ex parte EDMUND O. SCHWEITZER III,
MANGAPATHIRAO VENKATA MYNAM,
ARMANDO GUZMAN-CASILLAS, TONY J. LEE,
VESELIN SKENDZIC, BOGDAN Z. KASZTENNY,
and DAVID E. WHITEHEAD
Appeal 2017-008597
Application 14/486,921
Technology Center 2800
Before MICHAEL P. COLAIANNI, DEBRA L. DENNETT, and
MERRELL C. CASHION JR., Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-008597
Application 14/486,921
Appellants1 appeal under 35 U.S.C. § 134 the Examiner’s Final
rejection of claims 1—25. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
We AFFIRM.
The appeal is directed to methods and a system for “calculating a fault
location on power lines based on traveling waves” using a variety of
techniques for analyzing data associated with traveling waves (Spec. 12).
Claim 1 is illustrative below:
1. A method for detecting faults on an electrical
transmission line in an electric power delivery system,
comprising:
detecting at a first terminal of the electric power
delivery system, a traveling wave associated with a
fault;
detecting at a second terminal of the electric power
delivery system, the traveling wave associated with the
fault;
a first intelligent electronic device (IED) receiving
traveling wave measurements from the first and second
terminals, the fault located between the first and second
terminals;
generating, using the first IED, an initial location of
the fault;
1 Schweitzer Engineering Laboratories, Inc. is the Applicant and is identified
as the real party in interest. App. Br. 1.
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Application 14/486,921
calculating, using the first IED, a dispersion of the
traveling wave using the initial location of the fault and
a rate of dispersion of the transmission line;
identifying, using the first IED, a time associated
with a peak value of the traveling wave using the
calculated dispersion of the traveling wave and a time
of detection of the traveling wave; and,
estimating, using the first IED, the first fault location
based on the time associated with the peak value for the
first and second terminals.
Appellants appeal the following rejection:
1. Claims 1—25 are rejected under 35 U.S.C. § 101 because the claimed
invention is directed to a judicial exception without significantly
more.
As a preliminary matter, the Examiner also rejects claims 22 to 25 under
35 U.S.C. § 112(b) as being indefinite for failing to point out and distinctly
claim the subject matter which the inventor or joint inventor regards as the
invention. Appellants do not specifically contest the Examiner’s 35 U.S.C. §
112(b) rejection (App. Br. 12). Therefore, we summarily affirm the
Examiner’s uncontested 35 U.S.C. § 112(b) rejection.
FINDINGS OF FACT & ANALYSIS
Appellants argue the subject matter of independent claims 1,2, and 22
as a group {id. at 12—22). We address these claims together.
Appellants argue the claimed subject matter is not an abstract idea
when the correct legal standard is applied to the claims {id. at 12).
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Application 14/486,921
Appellants contend that the Examiner applies a legal standard to the claims
that is directly and specifically contradicted by the United States Patent and
Trademark Office’s official interpretation of the Court’s holding in Alice
Corp. v. CLS Bank Inti., 134 S.Ct. 2347 (2014) (id.). Appellants contend
that the claims recite additional elements that amount to significantly more
than the judicial exception (id.). Appellants also contend that the
Examiner’s case is faulty because the Examiner has not compared the claims
on appeal with any claims that were previously held to be directed to an
abstract idea (id. at 14). Citing Enfish LLC v. Microsoft Corp., 822 F.3d
1327 (Fed. Cir. 2016), Appellants further contend that the claims on appeal
are directed to an improvement in the functioning of a computer, not the
abstract idea of adding conventional computer components to well-known
business practices (id.). Appellants argue that the claims are directed to
methods useful for improving the functioning of intelligent electronic
devices (IEDs) (id.). Appellants contend that the “computer components”
recited in the claims are not generic computer components (id. at 16).
Appellants argue that the sensor components in electrical communication
with an electric power delivery system do not seem to be generic computer
components (id.). Appellants argue that the claims improve the functioning
of computer and do not merely add conventional computer components to a
well-known business method as in Alice (id.).
Appellants further argue that the Examiner has not applied the
guidance provided in the “Updated Examples” in the training material on 35
USC §101 provided by the United States Patent and Trademark Office,
which indicates that routine and conventional steps may satisfy the
“significantly more” analysis required by Alice (id.). Appellants contend
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that the Examiner has improperly stated the legal standard for determining
compliance with 35USC§ 101 as requiring the claimed subject matter to be
“significantly more and something that the industry had not been able to
obtain” (id. at 17). Appellants contend that the Examiner has not provided
any finding regarding what the “industry had been able to obtain” (id.).
Appellants argue that the “streamlined analysis” discussed in the
United State Patent and Trademark Office’s Interim Guidance should be
applied to the claims (id. at 18). Appellants contend that, when claims 1, 2
and 22 are viewed as a whole, they clearly limit the claims and do not “tie
up” any abstract idea such that others cannot practice it (id.). Appellants
contend that Example 27 in the Updated Examples in the Interim Guidance
training supports that a claim that is less limiting than the present claim was
found to be patent eligible under 35 USC § 101 (id.). Appellants contend
that the claims are limited to improving the technology of monitoring and
protecting an electric power delivery system, which does not preempt the
use of the abstract idea in all applications (id. at 19).
The Supreme Court’s two-step framework, described in Mayo and
Alice, guides our analysis. Alice Corp. Pty. Ltd. v. CLSBankInt’l, 134 S.Ct.
2347, 2355 (2014) (citing Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 76-77, 132 S.Ct. 1289, 1296-97(2012)). We first
determine whether a claim is “directed to” a patent-ineligible abstract idea.
If so, we then consider the elements of the claim—both individually and as
an ordered combination—to assess whether the additional elements
transform the nature of the claim into a patent-eligible application of the
abstract idea (id.). This is the search for an “inventive concept”—something
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sufficient to ensure that the claim amounts to “significantly more” than the
abstract idea itself (id.).
In the present case, the Examiner applies the standards discussed by
the Court in Alice, as informed by the guidance provided by the USPTO
training materials on the subject matter, in determining that the claims fail to
comply with 35USC§ 101. Although Appellants contend that the Examiner
has not considered the claims as a whole, we find that the evidence of record
is to the contrary. The Examiner finds that the claims 1, 2, and 22 recite an
abstract idea as the claims are directed to “human evaluation and
mathematical concept (algorithm)” (Final Act. 3 4). The Examiner finds
that the steps of detecting at a first and a second terminal of the electric
power delivery system, travelling waves associated with a fault is merely
data collection (id. at 4). The Examiner finds that because of the
indefmiteness issue with claim 22, it is not possible to determine the
significance of “a monitored equipment interface configured to issue control
instructions to a circuit breaker of the electric power delivery system” (id.).
In other words, the Examiner has considered all the limitations of the claims
and determined that the claims as a whole are not patent eligible because
they involve an abstract idea.
Appellants contend that the claims are not directed to an abstract idea
because the claims are directed to process or apparatus and therefore do not
fall under a judicial exception (App. Br. 13). Appellants cite Enfish as
holding that computer-related technology are not necessarily abstract ideas
(id. at 14).
The Examiner correctly finds that the facts in Enfish are not on point
with the facts of the present case and, therefore, Enfish is not controlling
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(Ans. 7). Enfish concerned a logical model for a computer database which
the court found to improve computer capabilities and not merely to use the
computer as a tool. Enfish, 822 F.3d at 1336. In the present appeal, the
claims do not improve the functionality of the computer as a logical model
of a computer database as the court found in Enfish. Rather, as asserted by
the Examiner (Ans. 7), the claims on appeal use a general purpose computer
as a tool to run the software that calculates and estimates the location of a
fault.
Appellants’ arguments that the claims are directed to improving the
functioning of an intelligent electronic device are based upon limitations not
appearing in the claim (App. Br. 14—15; Ans. 7)). For example, Appellants
argue that claim 1 recites, inter alia, “establishing a validation criteria . . .
location of the fault” and “identifying measurements that satisfy the
validation criteria” (App. Br. 15). These limitations, among others argued
with regard to claims 1, 2, and 22, do not appear in the claims. Thus,
Appellants have not explained error in the Examiner’s finding that the
claims are directed to using a computer as a tool to run software that
implements an algorithm (Ans. 7).
Appellants contend that the “Updated Examples,” specifically
Example 27, in the USPTO training on 35 USC § 101, dated May 2016,
states that claims directed to basic input/output system (BIOS) on a
computer is patent eligible (App. Br. 18). Appellants contend that if the
BIOS example is patent eligible under 35 USC § 101, then Appellants’ more
specifically claimed methods and system should be patent eligible too {id. at
19). Appellants argue that the appealed claims are limited to a use in an
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electric power delivery system and “tie up” significantly less than the claim
deemed patent eligible in the USPTO’s Updated Training Example 27 (id.).
The USPTO training Example 27 is a hypothetical example and is
distinguishable from the present claims on appeal. In Example 27, the claim
involved transferring the BIOS code between a remote location to a local
computer system (July 2015, Update App’x 1: Examples, 22). The claim
was found to be eligible as a method of transferring BIOS code from a
remote location to a local computer (id.). The BIOS code did not involve
any mathematical calculation to obtain a result or otherwise run afoul of
being an abstract idea (id.). In contrast, the present claims include an
algorithm that calculates a dispersion of a traveling wave which is then used
in the process of determining a fault location (claim 1).
Appellants contend that under the Diamond v. Diehr, 450 US 175
(1981) holding, the claims are patent eligible (App. Br. 19-20). Appellants
argue that the steps recited in claims 1 and 2 improve another technical field
as in Diehr and are patent eligible (id. at 21). In Diehr a rubber molding
process was claimed where a cure time for the rubber as calculated and used
to determine when to open the mold. A distinguishing feature in Diehr is
that a rubber molding was formed as a result of the curing control. In
contrast, the present claims uses an algorithm to estimate or calculate the
location of a fault but the claim does not recite doing anything with the
information once estimated or calculated. In contrast, the mold in Diehr was
opened once the curing time was reached.
The Examiner also finds that the “intelligent electronic device” recited
in the claims includes a generic computing device (Ans. 6). Appellants do
not dispute that finding (no Reply Brief was filed). The Examiner’s finding
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Application 14/486,921
is supported by Appellants’ Specification that discloses that “[t]hese
[traveling wave fault location] systems obtain the events from transmission
line terminals and use a general purpose computer that runs software to
determine a location of the fault” (Spec. 128). Appellants do not explain
how the intelligent electronic device differs from a general purpose
computer. Method claims 1 and 2 merely recite an algorithm that estimates
(claim 1) or calculates (claim 2) the location of a fault using an intelligent
electronic device. System claim 22 uses a “sensor component” to obtain
electrical signals from the electric power delivery system and to generate
electrical measurements from the electrical signals and a “dispersion
compensation module” that is configured to perform the algorithm. Thus,
the claims involve an abstract idea that involves a mathematical algorithm.
Appellants’ argument that the claims “tie up” less than the
hypothetical claim in the USPTO’s training Example 27 appears to be
arguing that the claims on appeal do not preempt all uses of the algorithm
(App. Br. 19). However, preemption is only one consideration taken into
account in performing the Alice and Mayo analysis. Nevertheless, the issue
of preemption is not considered in the Updated Training Example 27
because the BIOS transfer method was not found to involve an abstract idea
(i.e., a judicial exception). Therefore, Appellants’ comparison of the present
claims to those in Example 27 is not a meaningful one.
Thus, we agree with the Examiner that, under the first step of
Alice/Mayo, the claims on appeal are directed to a patent-ineligible abstract
idea.
The next step is to determine whether the claims include an inventive
concept that is significantly more than the abstract idea. Alice, 134 S.Ct. at
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2355. Appellants’ description indicates that a general purpose computer
may be used to run the algorithm (Spec. 128). Therefore, Appellants
recitation in the preamble of using this algorithm for monitoring an electric
power delivery system does not add significantly more to the judicial
exception. Rather, the claims merely use a computer as a tool to implement
an abstract idea in a manner that does not amount to significantly more than
the exception. As noted above, the use of a sensor in claim 22 performs the
generic function of sensing electrical measurements from the traveling wave.
A sensor performing its intended function does not amount to significantly
more than the exception. See Alice, 134 S.Ct. at 2358; Electric Power
Group, LLCv. Alstom S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016);
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715—16 (Fed Cir. 2014);
Content Extraction and Transmission LLC v. Wells Fargo Bank, 776 F.3d
1343, 1348 (Fed. Cir. 2014).
Therefore, we also agree with the Examiner that Appellants have not
adequately explained how the claimed subject matter, directed to an abstract
idea, is significantly more than the abstract idea under the second step of
Alice/Mayo.
On this record, we affirm the Examiner’s 35USC§ 101 rejection.
DECISION
The Examiner’s decision 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). 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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