Ex Parte Skaaksrud

Patent Trial and Appeal Board

Jun 22, 2018

14446165 (P.T.A.B. Jun. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/446,165 07/29/2014 Ole-Petter Skaaksrud
44305 7590 06/22/2018
WITHERS & KEYS, LLC
P. 0. BOX 2049
MCDONOUGH, GA 30253
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.
30006.00lOUSOl 1084
EXAMINER
CHEN, GEORGE YUNG CHIER
ART UNIT PAPER NUMBER
3628
MAILDATE DELIVERY MODE
06/22/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OLE-PETTER SKAAKSRUD
Appeal2017-003330
Application 14/446, 165 1
Technology Center 3600
Before CAROLYN D. THOMAS, ADAM J. PYONIN, and
MICHAEL M. BARRY, Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge PYONIN.
Opinion Dissenting filed by Administrative Patent Judge THOMAS.
PYONIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from a final
rejection of claims 1-30, which are all the pending claims. We have
jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 FedEx Corporate Services, Inc. is identified as the real party in interest.
Br. 3
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Application 14/446, 165
STATEMENT OF THE CASE
Introduction
The Application "generally relates to systems, apparatus and methods
in the field of tracking items (e.g., an object, a package, a person, a piece of
equipment)." Spec. i12. Claims 1 and 16 are independent. Claim 1 is
reproduced below for reference:
1. A method for determining an improved location of a first
node in a wireless node network based on context data and by a
network device deployed in the wireless node network, the
method comprising:
accessing, by the network device, a first type of the
context data related to a proximate environment of the first
node, wherein the first type of the context data comprises signal
degradation information on how a second node would operate
in a similar environment to the proximate environment of the
first node when the second node is a similar type as the first
node;
adjusting, by the network device, an anticipated
communication distance setting related to the first node based
upon on the first type of the context data;
determining, by the network device, the improved
location of the first node based upon the adjusted
communication distance setting; and
storing, by the network device, the determined improved
location of the first node as part of location data maintained on
a memory storage of the network device.
The Examiner's Rejection
Claims 1-30 stand rejected under 35 U.S.C. § 101 as being
unpatentable. Final Act. 2.
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PRINCIPLES OF LAW
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101. We
analyze the invention under a two-stage framework, however, "for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts." Alice Corp. Pty Ltd. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2355
(2014) (citing Mayo Collaborative Services v. Prometheus Labs., Inc., 566
U.S. 66, 75-77 (2012)). The first stage in that analysis is to "determine
whether the claims at issue are directed to one of those patent-ineligible
concepts," e.g., to an abstract idea. Alice, 134 S. Ct. at 2355. If the claims
are directed to a patent-ineligible concept, the inquiry proceeds to the second
stage, where the elements of the claims are considered "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."
Alice, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 77-78).
Noting that "the two stages involve overlapping scrutiny of the
content of the claims," the Federal Circuit has described
the first-stage inquiry as looking at the "focus" of the claims,
their" 'character as a whole,' "and the second-stage inquiry
(where reached) as looking more precisely at what the claim
elements add-specifically, whether, in the Supreme Court's
terms, they identify an" 'inventive concept' "in the application
of the ineligible matter to which (by assumption at stage two)
the claim is directed.
Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir.
2016) (citations omitted). The Supreme Court, furthermore, acknowledges
that "all inventions at some level embody, use, reflect, rest upon, or apply
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laws of nature, natural phenomena, or abstract ideas." Mayo, 566 U.S. at 71.
We, therefore, look to whether the claims focus on a specific means or
method that improves the relevant technology, or instead are directed to a
result or effect that itself is the abstract idea and merely invoke generic
processes and machinery. See, e.g., Enfzsh, LLC v. Microsoft Corp., 822
F.3d 1327, 1336 (Fed. Cir. 2016).
ANALYSIS
In rejecting the pending claims under § 101, the Examiner determines
the claims are "directed to [the] abstract idea of determining location," and
the additional claim elements comprise steps performed by a "network
device [which] would fall under the criteria of being (i) mere instructions to
implement the idea on a computer," as "the data is being read (accessed) by
generic computers." Final Act. 2-3, 4. The Examiner further explains that
"the invention is, as identified, merely ... formulas/functions to calculate
position and then a computer (i.e. 'network device') is built around the
formulas/functions post-hoc. Therefore, it would not be 'significantly more'
than an abstract idea." Ans. 3.
Appellant argues the Examiner's rejection is in error, because "claim
1 recites technical elements that rise to the level of something substantially
more than merely determining location, or determining location using a
computer." Br. 18. Particularly, Appellant asserts that "claim 1 expressly
recites limitations that collectively provide a specific and technical solution
deployed as part of a wireless node network application that enhances and
improves how a network device in that wireless node network
advantageously operates" (Br. 16), "by determining an improved location of
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a first node in a wireless node network based on signal degradation
information type of context data related to a proximate environment of the
first node" (Br. 18).
We are persuaded the Examiner errs. Claim 1 includes the steps of:
( 1) accessing context data related to a proximate environment of a first node,
the context data comprising signal degradation information on how a second
node would operate in a similar environment; (2) adjusting an anticipated
communication distance setting based on the context data; and (3)
determining an improved location of the first node based upon the
anticipated communication distance setting. Thus, as an ordered
combination, claim 1 determines a location of a first node based on data
which includes technology-specific information relating to a second node
operating in a similar situation. See, e.g., Spec. i-fi-1233-236, 241; see also
Br. 17. We agree with Appellant that such process includes an inventive
concept comprising a technical improvement for tracking the components of
a wireless network. See Br. 13 (the claim "improves how the network
device operates to improve how to locate other wireless nodes"); see also
Fig. 2; Spec. i-fi-17-8 (describing existing network tracking methods), 391,
427--449 (describing tracking a network node by accounting for the
proximate environment conditions of a second node).
The inventive concept of claim 1 is analogous to claims our reviewing
courts have found to be "patent eligible because they improve[] an existing
technological process." Alice 134 S. Ct. at 2358 (citing Diamond v. Diehr,
450 U.S. 175 (1981)); see also Bascom Glob. Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016) ("the inventive concept
harnesses this technical feature of network technology"); Amdocs (Israel)
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Ltd. v. Openet Telecom, Inc., 841F.3d1288, 1301 (Fed. Cir. 2016), cert.
denied, 138 S. Ct. 469, 199 L. Ed. 2d 356 (2017) ("this [claimed] enhancing
limitation necessarily involves the arguably generic gatherers, network
devices, and other components working in an unconventional distributed
fashion to solve a particular technological problem"); cf Thales Visionix Inc.
v. United States, 850 F.3d 1343, 1349 (Fed. Cir. 2017) (determining the
claims patent eligible under Alice stage 1 for being "directed to a new and
useful technique for using sensors to more efficiently track an object on a
moving platform. That a mathematical equation is required to complete the
claimed method and system does not doom the claims to abstraction").
Additionally, we are persuaded by Appellant's argument "that the
[F]inal Office Action has failed to present a prima facie case under step two
of the§ 101 analysis of patent ineligibility for claim 1." Br. 14--15; see also
Br. 17 ("claim 1 recites limitations that are collectively distinguished from
what is known to be conventional, routine, and well-known."). The
Examiner finds "per the adjusting step, the step can be directed as
performing well-understood, routine operation because it's merely executing
a known formula that takes the first data as input and then output[ s] a[ n]
anticipated distance setting; therefore, these steps would not be sufficient to
be significantly more." Ans. 3. The Examiner, however, provides no factual
basis to support the finding that the adjusting step is a well-understood,
routine, and conventional operation. See Berkheimer v. HP Inc., 881 F.3d
1360, 1369 (Fed. Cir. 2018) ("[w]hether something is well-understood,
routine, and conventional to a skilled artisan at the time of the patent is a
factual determination.").
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Based on the record before us, we are persuaded claim 1 does not
merely recite the abstract concept of determining the location of a node in a
wireless network; nor does the claim "simply instruct the practitioner to
implement the abstract idea ... on a generic computer." Alice, 134 S. Ct. at
2359. Rather, we find claim 1 recites limitations "sufficient to transform the
claimed abstract idea into a patent-eligible application." Alice 134 S. Ct. at
2357 (internal quotations omitted). Accordingly, we agree with Appellant
that independent claim 1 is patent eligible under the second stage of the
Alice framework. See Br. 18.
CONCLUSION
Accordingly, we conclude the Examiner erred in determining
independent claim 1 is not patent eligible. We do not sustain the Examiner's
rejection of claim 1, claim 16 which recites similar limitations, or the claims
that depend therefrom.
Separately, we note the Appeal Brief includes the following
statement: "Appellant[] request[ s] the opportunity for a personal appearance
before the Board of Appeals to argue the issues of this appeal." Br. 1. Such
statement is not a proper request for oral hearing. See MPEP § 1209 ("If the
written request for an oral hearing is not filed in a separate paper captioned
'REQUEST FOR ORAL HEARING,' the request is improper and the appeal
will be assigned for consideration and decision on the briefs without an oral
hearing."); see also 37 CPR§ 41.47.
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DECISION
The Examiner's decision rejecting claims 1-30 is reversed.
REVERSED
8
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OLE-PETTER SKAAKSRUD
Appeal2017-003330
Application 14/446, 165
Technology Center 3600
Before CAROLYN D. THOMAS, ADAM J. PYONIN, and
MICHAEL M. BARRY, Administrative Patent Judges.
THOMAS, Administrative Patent Judge, Dissenting.
DISSENTING OPINION
I respectfully dissent from the Majority's decision to reverse the
Examiner's rejection of claims 1-30 under 35 U.S.C. § 101. Specifically, I
disagree with the Majority's view that independent claim 1 is patent eligible
under the second step of the Alice framework.
Although the Majority correctly set forth supra that if the claims are
directed to a patent-ineligible concept, i.e., the first step of Alice, the inquiry
then proceeds to the second step, where the elements of the claims are
considered "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" (Alice, 134 S. Ct. at 2355 (quoting
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Mayo, 566 U.S. at 77-78)), it is unclear as to whether the Majority has
considered the first step of Alice. As such, I shall address the first step here.
According to Alice step one, "[ w ]e must first determine whether the
claims at issue are directed to a patent-ineligible concept," such as an
abstract idea. Alice, 134 S. Ct. at 2355. Specifically, we look to whether the
claims focus on a specific means or method that improves the relevant
technology or are instead directed to a result or effect that itself is the
abstract idea and otherwise merely recite generic processes and machinery.
See Enfzsh, 822 F.3d at 1336. If the claims are not directed to an abstract
idea, the inquiry ends. Otherwise, the inquiry proceeds to the second step.
Because the Majority proceeded to the second step, one can assume the
Majority found the claims to be directed to an abstract idea, although this
was not clearly highlighted.
For example, the Majority's analysis starts with pointing out that
"Appellant argues the Examiner's rejection is in error, because 'claim 1
recites technical elements that rise to the level of something substantially
more than merely determining location, or determining location using a
computer"' (Decision 4) (emphasis added). However, to the extent that
Appellant is arguing supra that claim 1 recites additional elements that
amount to "significantly more" than the judicial exception, that issue is
distinct from whether claim 1 is directed to the abstract idea of determining
location.
Regarding an abstract idea, the Examiner finds that the claims "are
directed to [the] abstract idea of determining location" and is "similar to the
following concepts ... [ c ]omparing new and stored information and using
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rules to identify option[,] [ o ]rganizing information through mathematical
correlations[, and a] mathematical formula" (Final Act. 2 (bullets omitted)).
Firstly, Appellant challenges the Examiner's "abstract" findings by
citing Ex parte Poisson, Appeal No. 2012-011084 (PTAB Feb. 26, 2015)
and contending that the final Office Action has not met the criteria set forth
in Ex parte Poisson (App. Br. 12).
Although Appellant highlights a previous Board decision and suggests
that we uphold the same, as a matter of course, I find what a different panel
did in a different situation under a different set of facts has little bearing on
how this case should be disposed of. While I do not consider Ex parte
Poisson controlling, that panel's consideration of evidence in making a
determination under the first step of the Alice framework has merit. A
similar approach was taken in Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229
(Fed. Cir. 2016). But these cases do not stand for the proposition that
Examiners must provide evidentiary support in every case before a
conclusion can be made that a claim is directed to an abstract idea. I believe
there is no such requirement. See, e.g., para. IV "July 2015 Update: Subject
Matter Eligibility" to 2014 Interim Guidance on Subject Matter Eligibility
(2014 IEG), 79 Fed. Reg. 74618 (Dec. 16, 2014) ("The courts consider the
determination of whether a claim is eligible (which involves identifying
whether an exception such as an abstract idea is being claimed) to be a
question of law.[] Accordingly, courts do not rely on evidence that a
claimed concept is a judicial exception, and in most cases resolve the
ultimate legal conclusion on eligibility without making any factual findings"
(emphasis added)). Evidence may be helpful in certain situations where, for
instance, facts are in dispute. But it is not always necessary.
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In any case, the Examiner highlighted some known abstract concepts,
i.e., comparing new and stored information and using rules to identify
options; organizing information through mathematical correlations; and a
mathematical formula (see Final Act. 2). I find that the Examiner's cogent
analysis relying on judicial examples (id.), albeit without specifically citing
the specific cases, shows the Examiner provided adequate basis for
determining that the claims are directed to an abstract concept.
Claim 1 recites four steps: (1) accessing a first type of context data
comprising signal degradation information; (2) adjusting an anticipated
distance setting based upon the first type of data; (3) determining the
improved location of the first node based on the adjusted distance; and (4)
storing the determined improved location. These four steps merely present a
scheme for using stored data and mathematical calculations to track items.
Further, as noted by the Examiner, "the invention is directed to a
formula (the adjusting and determining step would no doubt include some
kind of functions that takes the first data as input) for calculating/ calibrating
position" (Ans. 2). For example, the claims primarily involve accessing data
(proximate environment data and signal degradation data) performing
various calculations (ad justing distances, determining improved locations)
and outputting/storing data based on those calculations. Such claims have
been found to be directed to ineligible subject matter. See Parker v. Flook,
437 U.S. 584, 595 (1978) ("'[I]f a claim is directed essentially to a method
of calculating, using a mathematical formula, even if the solution is for a
specific purpose, the claimed method is nonstatutory. "') (Internal quotations
omitted); see also Digitech Image Tech., LLC v. Electronics for Imaging,
Inc., 758 F.3d 1344, 1350 (Fed. Cir. 2014) (finding "a process of organizing
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information through mathematical correlations and is not tied to a specific
structure or machine" to be an abstract idea.).
Additionally, the collection of information and analysis of information
(e.g., recognizing certain data within the dataset) are also abstract ideas.
Elec. Power Grp., 830 F.3d at 1353. Similarly, "collecting, displaying, and
manipulating data" is an abstract idea. Intellectual Ventures I LLC v.
Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017). Also, more
recently, our reviewing court has also concluded that acts of parsing,
comparing, storing, and editing data are abstract ideas. Berkheimer v. HP
Inc., 881F.3d1360, 1366 (Fed. Cir. 2018).
Although the Majority states that "claim 1 determines a location of a
first node based on data which includes technology-specific information
relating to a second node operating in a similar situation" (Decision 5), I
agree with the Examiner that claim 1 is merely performing data gathering
and executing a formula that takes this data as input and calculates/ outputs a
distance setting. Appellant's Specification does not indicate that such
information is limited to "technology-specific information" as interpreted by
the Majority. Additionally, it is unclear what the Majority means by
"technology-specific information."
Here, Appellant's Specification merely states that the "context data" is
collected and maintained within a context database and such context data
"may generally relate to what a similar node has experienced in a similar
environment to what a given node is presently experiencing" (Spec. i-f 233),
i.e., historic data from a similar node. Specifically, Appellant's
Specification states "exemplary types of context data 560 may include but
are not limited to scan data 570, historic data 575, shipment data 580, layout
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data 585, RF data 587, and 3rd party data" (Spec. i-f 236). Although the data
may be gathered/ generated by different means, all such information is
eventually stored in the database for later usage.
In other words, the claimed invention starts with accessing data, e.g.,
historic data, from a database and using this retrieved data to make
adjustments to a distance setting and determining an improved location
based thereon. Thus, I disagree with the Majority that such a process
"includes an inventive concept comprising a technical improvement for
tracking the components" (Decision 5), given that the claims are merely
using a generic computer to access previously-stored data from a database
and perform calculation based thereon to determine the improved location.
Secondly, Appellant contends that "claim 1 immediately shows that
this specific process is not attempting to tie up all manner of 'determining
location"' (App. Br. 13). I interpret this as an argument that the claims do
not preempt the abstract idea of determining location.
Although pre-emption "might tend to impede innovation more than it
would tend to promote it, 'thereby thwarting the primary object of the patent
laws'" (Alice, 134 S. Ct. at 2354 (citing Mayo, 566 U.S. at 70-72)), "the
absence of complete preemption does not demonstrate patent eligibility"
(Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015)). Moreover, because I find the claimed subject matter covers patent-
ineligible subject matter, the pre-emption concern is necessarily addressed.
"Where a patent's claims are deemed only to disclose patent ineligible
subject matter under the Mayo framework, ... preemption concerns are fully
addressed and made moot." Ariosa Diagnostics, 788 F.3d at 1379.
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I now tum to the second step of the Alice framework: "a 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."' Alice, 134 S. Ct. at 2355
(citing Mayo, 566 U.S. at 71-73).
Appellant contends that "the [E]xaminer has failed to specifically
identify any of the 'additional element( s )' in the claim ... [ n ]or has the
[E]xaminer actually explained why the limitations ... do not amount to
significantly more" (App. Br. 15). I disagree with Appellant.
Here, the Examiner noted that "all the steps are performed 'by a
network device' ... mere instructions to implement the idea on a computer
... [which represents a generic] computer [structure]" (Final Act. 2-3). The
Examiner further added:
As per the accessing step, the step can be directed to insignificant
extra solution activity because it's mere data gathering ... the
adjusting step ... can be directed [to] performing well-understood,
routine operation because it's merely executing a known formula that
takes the first data as input and then output a[ n] anticipated distance
setting ... the invention is, as identified, merely being
formulas/functions to calculate position and then a computer (i.e.
"network device"') is built around the formulas/functions post-hoc.
(Ans. 3). As such, I find the combined Final Action and Examiner's Answer
did in fact identify the additional elements and provided an adequate
basis/explanation for determining that the claims do not amount to
significantly more. As highlighted supra, the Examiner is not merely resting
the determination on whether or not a computer is recited, as argued by
Appellant (see App. Br. 16), but has also presented facts on how the steps
amount to extra solution activity.
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The prohibition against patenting an abstract idea "cannot be
circumvented by attempting to limit the use of the formula to a particular
technological environment or adding insignificant post-solution activity."
Bilski v. Kappas, 561 U.S. 593, 610-11 (2010) (citation and internal
quotation marks omitted). The Court in Alice noted that"' [ s ]imply
appending conventional steps, specified at a high level of generality,' was
not 'enough' [in Mayo] to supply an 'inventive concept."' Alice, 134 S. Ct.
at 2357 (quoting Mayo, 566 U.S. at 82, 77-78, 71-72).
Furthermore, as recognized by the Supreme Court, "the mere
recitation of a generic computer cannot transform a patent-ineligible abstract
idea into a patent-eligible invention." See Alice, 134 S. Ct. at 2358, 2359
(concluding claims "simply instruct[ing] the practitioner to implement the
abstract idea of intermediated settlement on a generic computer" not patent
eligible); see also Ultramercial Inc. v. Hulu, LLC, 772 F.3d 709, 715-16
(Fed. Cir. 2014) (claims merely reciting abstract idea of using advertising as
currency as applied to particular technological environment of the Internet
not patent eligible); Accenture Global Servs., GmbH v. Guidewire Software,
Inc., 728 F.3d 1336, 1344--45 (Fed. Cir. 2013) (claims reciting "generalized
software components arranged to implement an abstract concept [of
generating insurance-policy-related tasks based on rules to be completed
upon the occurrence of an event] on a computer" not patent eligible); and
Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333-34 (Fed. Cir. 2012)
("[ s ]imply adding a 'computer aided' limitation to a claim covering an
abstract concept, without more, is insufficient to render [a] claim patent
eligible" (internal citation omitted)).
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Here, I agree with the Examiner that the pre- or post- extra-solution
activity recited in the claims do not add enough to the claims to transform
the recited method into patent-eligible subject matter. Patent eligibility
should not "depend simply on the draftsman's art." See Alice, 134 S. Ct. at
2358-59 (quoting Parker, 437 U.S. at 593 (internal quotation marks
omitted)).
Appellant also contends that the Examiner has admitted that the
claims are "distinguished from what is known to be conventional, routine,
and well-known location determining applications in the prior art of record
in this case" (App. Br. 17). In response, the Examiner finds that "the
standard used for 103 rejection should not be confused with the 101
rejection" (Ans. 4). I agree with the Examiner.
Indeed, "[t]he 'novelty' of any element or steps in a process, or even
of the process itself, is of no relevance in determining whether the subject
matter of a claim falls within the § 101 categories of possibly patentable
subject matter." Diamond, 450 U.S. at 188-89 (emphasis added); see also
Mayo, 566 U.S. at 91-92 (rejecting "the Government's invitation to
substitute§§ 102, 103, and 112 inquiries for the better established inquiry
under § 101 ").
Because Appellant's independent claims 1 and 162 are directed to a
patent-ineligible abstract concept and do not recite something "significantly
more" under the second step of the Alice analysis, I would sustain the
Examiner's rejection of these claims as well as the respective dependent
2 Alice also confirmed that if a patent's systems claims are no different in
substance from its method claims, they will rise and fall together. Alice, 134
S. Ct. at 2360.
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claims under 35 U.S.C. § 101 as being directed to non-statutory subject
matter in light of Alice and its' progeny.
I, therefore, respectfully dissent from the Majority Decision reversing
the rejection of claims 1-30 under 35 U.S.C. § 101.
11