Ex Parte STARR et al

Patent Trial and Appeal Board

Nov 2, 2018

13847247 (P.T.A.B. Nov. 2, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/847,247
129925
ABB Inc.
FILING DATE
03/19/2013
7590 11/06/2018
Taft, Stettinius & Hollister LLP
One Indiana Square
Suite 3500
Indianapolis, IN 46204-2023
FIRST NAMED INVENTOR
KEVIN DALE STARR
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.
ABBI-01543 7733
EXAMINER
KNOX, KALERIA
ART UNIT PAPER NUMBER
2857
NOTIFICATION DATE DELIVERY MODE
11/06/2018 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):
taft-ip-docket@taftlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE
THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN DALE ST ARR
and Bengt T. Hendlund 1
Appeal 2017-011137
Application 13/84 7,247
Technology Center 2800
Before MARK NAGUMO, JEFFREY B. ROBERTSON, and
JENNIFER R. GUPTA, Administrative Patent Judges.
NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL
ABB Schweiz AG ("Starr") timely appeals under 35 U.S.C. § 134(a)
from the Final Rejection2 of claims 1-19. We have jurisdiction.
35 U.S.C. § 6. We reverse.
1 The applicant under 3 7 C.F .R. § 1.46, and hence the appellant under
35 U.S.C. § 134, is the real party in interest, identified as ABB Schweiz AG.
(Appeal Brief, filed 17 February 2017 ("Br."), 2.)
2 Office Action mailed 8 September 2016 ("Final Rejection"; cited as "Final
Act.").
Appeal 2017-011137
Application 13/847,247
A. Introduction 3
OPINION
The subject matter on appeal relates to an emergency braking system
testing device for a hoist system (independent claim 14), a hoist system
comprising such a testing device (independent claim 8), and a method of
operating such a braking system (independent claim 1 ).
The '24 7 Specification explains that a hoist system comprises a
"skip," which is disclosed to be "a generic term signifying a wide variety of
hoist work pieces [that] may be conveyed upwards and downwards in
moving loads" (Spec. 5 [0017]), "lift roping," which is used to denote not
only "rope," but metal cables, chain, and other flexible elements able to
wrap about a pulley or drum and to thereby responsively lift or lower a skip
(id. at [0016]). The pulley is typically driven by a hoist motor, and is also
controlled by hydraulic brakes. (Id. at [0015].) In the examples provided in
the Specification, applied hydraulic pressure holds the brake calipers open;
to apply the brakes, the hydraulic pressure is lowered to allow the calipers to
engage the pulley to slow the raising or lowering of the skip. Various
sensors may be used to provide a speed signal of the skip, and a brake
pressure signal, which are "used to model and compare the permissible
braking pressure level to a time-to-hold pressure requirement period
specification." (Id. at 7 [0020].)
3 Application 13/847,247, Hoist performance diagnostic, implementation
and sustaining services, filed 19 March 2013. We refer to
the "'247 Specification," which we cite as "Spec."
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Application 13/847,247
In the words of the Specification, "conventional hoist performance
analysis is very manual and provides limited amounts of data to engineers
and maintenance technicians [to] determine problems and resolutions.
However, manual efforts are not generally effective in processing the large
amount of data associated with the operation of complex hoist systems."
(Spec. 17 [0082].) According to the Specification, "[a]utomated hardware
tools according to the present invention utilize software instructions to
simplify complex operating data analysis and identify anomalies that cause
poor performance." (Id.)
Figure 3, shown below, illustrates data from an emergency braking
test (side and bottom annotations added).
00:00:00 00:00:03 OfHJG:% 00:00:09 (IG:1)):l2 00:0(U 5 00:00: 18 OO·O!l:21
{Figure 3: brake pressure versus time in seconds ( upper trace), and
skip speed versus time (lower trace)}
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Application 13/847,247
The Specification indicates that emergency stops are distinguished
from non-emergency stops by the existence, in the former, of sequential
patterns of transitions of specified valves within specified time frames that
are not present in the latter. (Spec. 9--10 [0055.])
As described in the Specification at page 11, paragraph [0058], in an
emergency stop, at t = 0, the brake pressure 3024 is high and constant, at
about 14 MPa (mega Pascal, 106 x 1 kgm-2s-2), so the calipers are not
engaged with the pulley, and the skip is moving rapidly (presumably
downward) at about -10 mis. At the beginning of time period Tl 5, at
t :::::; 5 s, the emergency braking starts (EMS) as the brake pressure 313
begins to drop approximately linearly and the calipers engage the pulley. In
time period T2 (7.5 :St :S 9.5)6, the brake pressure 314 is constant, at
about 6 MPa. In time period T3 (9.5 :St :S 9.6), the brake pressure 316 drops
steeply and linearly to about 2-3 MPa, and the skip is brought to a complete
stop, i.e., the speed of the skip 304 drops to O mis at 306, and remains
4 Throughout this Opinion, for clarity, labels to elements are presented in
bold font, regardless of their presentation in the original document.
5 The time periods are labeled in Figure 4, not shown here. It may be noted
that the change in velocity is approximately linear through periods Tl ( starts
at 312)-T3 (ends at 306), indicating that the acceleration of the skip is
roughly constant (dv/dt = constant) throughout this period.
( Cf Spec. 9 [0058], first sentence, referring to the "constant deceleration
period from the EMS (emergency stop) start point 312 to the end of the
'time to hold pressure' period at 308 [sic?].") Thus the "brake pressure,"
i.e., the hydraulic pressure applied to allow the calipers to engage the pulley,
does not track directly the force (f = mass x acceleration) applied to the
pulley (assuming the mass of the lift roping is negligible compared to the
mass of the load-bearing skip).
6 The adverb "about" should be inferred for all times.
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Appeal 2017-011137
Application 13/847,247
stopped for the remainder of the time plotted. In time period T4
(t :S 9.6 :S 12.5), the brake pressure 318 remains roughly constant. In time
period TS (12.5 :St :S 21 ), the brake pressure 320 drops exponentially to
about 0.5 MPa.
The significance of the constant pressure and duration of time
period T4 appears to be, in the words of the Specification, "to make sure that
a braking system pressure accumulator holds pressure for a specified safe
amount of time." (Spec. 10 [0056]; cf id. id. at [0057] ("[t]hough the
pressure rises slightly subsequent to this point in time [i.e., the beginning of
T4], to as much as three MPa before falling again to two MPa and then
tailing off further after about twelve second[ s] (00:00: 12), the brakes remain
engaged and the hoist skip stopped at a point 308 about three seconds after
the stopping point 306. ")) If the pressure is not held for an adequate period
of time, an error condition may be signaled so that remedial action can be
taken. (Id. 9 [0052], 17 [0081], [0083]-18 [0085].)
Claim 1 is representative and reads:
A method of operating an electronic control system to test the
performance of a hoist system including a braking system and
a plurality of hoist sensors structured to measure characteristics
of the hoist system, a skip, and lift roping, the method
comprising performing the following acts with the electronic
control system:
operating the hoist system so as to perform an emergency
braking event;
acquiring from the plurality of hoist sensors data associated
with the emergency braking event executed in the hoist system,
wherein
the hoist system conveys the skip upward and downward
via motive operation of the lift roping, and wherein
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Application 13/847,247
the acquired data comprises braking pressure levels and
speeds of the skip observed over time during the
emergency braking event;
modeling a plurality of different shape segments to different
portions of the braking pressure levels over different time
intervals using the acquired speed data during each of the
intervals from the plurality of hoist sensors, by:
modeling a linear shape model to the acquired braking
pressure values that are progressively decreasing over a first
of the time intervals that runs from an initiation time of the
emergency braking event to an onset of a second of the time
intervals that comprises generally constant braking pressure
values of the acquired braking pressure values;
modeling a constant shape model to the generally constant
acquired braking pressure values of the second time interval;
modeling the linear shape model to the acquired braking
pressure values that are progressively decreasing over a third
of the time intervals that runs from an end time of the second
time interval to a time at which the speed value drops to zero;
modeling a constant shape model to the braking pressure
values acquired over a fourth of the time intervals that is
defined from the time at which the speed value drops to
zero to a beginning in time of a progressive exponential
reduction in the acquired braking pressure values; and
modeling an exponential shape model to the braking
pressure values acquired over a fifth of the time intervals
occurring after an end of the fourth time interval;
determining whether a pressure value defined by the modeled
constant shape model of the braking pressure values acquired
over the fourth time interval is a permissible braking pressure
value for the hoist system for the emergency braking event;
providing a test result indicating whether the pressure value
is permissible; and
providing a recommended corrective action based upon the
test result.
(Claims App., Br. 17-18; some formatting and emphasis added.)
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Application 13/847,247
The Examiner maintains the following ground of rejection 7, 8 :
Claims 1-19 stand rejected under 35 U.S.C. §101 as being drawn to
judicially excepted subject matter.
B. Discussion
The Board's findings of fact throughout this Opinion are supported by
a preponderance of the evidence of record.
The Supreme Court's decision in Alice9 identifies a two-step
framework for determining whether claimed subject matter is judicially-
excepted from patent eligibility under § 101. In step one, a determination is
made as to whether the claims are directed to an "abstract idea." If so, in
step two, the claims are analyzed to determine whether there are other
elements or combinations of other elements that amount to "significantly
more" than the abstract idea itself. If all the non-abstract elements,
considered individually and as the "ordered combination" recited in the
claim, are well-understood, routine, or conventional in the art, and they do
not, for example, effect an improvement in the technology or technical field,
then they are "not 'enough' to transform an abstract idea into a patent-
eligible invention." Alice, 134 S. Ct. at 2359---60. This framework is
7 Examiner's Answer mailed 29 June 2017 ("Ans.").
8 Because this application was filed before the 16 March 2013, effective
date of the America Invents Act, we refer to the pre-AIA version of the
statute.
9 Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014).
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Application 13/847,247
substantially the same as the guidelines discussed by Starr in the Brief and in
the Reply, 10 and by the Examiner in the Final Rejection and the Answer.
The Examiner determines that the five steps of modelling the braking
data, and the further step of determining whether a pressure value for the
fourth time interval is a permissible braking pressure are abstract ideas
(FR 4); while the broadly recited initial steps of operating a hoist system and
acquiring data during an emergency stop are conventional data-gathering
steps (id. at 5). Similarly, the Examiner determines that the broadly recited
result is "simply output data generated by the algorithm, which is
insignificant extra-solution activity." (Id. at 3, 11. 6-7.) Thus, the
Examiner's analysis is strongly parallel to the then-recently decided case,
Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed.
Cir. 2016) ("[t]he focus of the asserted claims ... is on collecting
information, analyzing it, and displaying certain results of the collection and
analysis"), in which the appealed claims were found to be directed to an
abstract idea.
Starr urges first that the logical process recited in the claims is patent
eligible because it improves computer-related technology under Enfish 11 .
Starr argues that the Examiner erred in holding that claim 1 is directed to an
abstract idea, and that the Examiner erred further in improperly limiting
Enfzsh "to improvements in computers themselves." (Br. 11.) We do not
find these arguments persuasive of harmful error in the rejection. The rules
recited in claim 1 do not, unlike the claims at issue in Enfzsh, improve
10 Reply Brief filed 29 August 2017 ("Reply").
11 Enfzsh, LLCv. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016).
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Application 13/847,247
computer technology by being focused on a "specific improvement in
computer capabilities"; instead they recite "a process that qualifies as an
'abstract idea' for which computers are invoked merely as a tool." Enfzsh,
822 F.3d at 1336. Generally, fitting data to a set of models, i.e., optimizing
adjustable parameters in a set of models to best approximate the data, is a
standard mode of data analysis that has been made more efficient by
programmable computers since their inception. The mere enhancement over
manual, conventional hoist performance analysis, is not sufficient to
transform the abstract idea to patentable subject matter. Cf Two-Way Media
Ltd. v. Comcast Cable Commc 'ns, LLC, 874 F.3d 1329, 1337 (Fed. Cir.
2017) ("Claims directed to generalized steps to be performed on a computer
using conventional computer activity are not patent eligible.")
Starr argues further that the appealed claims are patent-eligible under
McR0 12 because "they recite a particular solution to a problem or a
particular way to achieve a desired outcome defined by the claimed
invention, as opposed to merely claiming the idea of a solution or outcome."
(Br. 12, last para.) But the recitation of specific steps of fitting distinct
regions of braking performance to distinct models (id. at 13, 1st full para.)
does not itself transform an abstract idea into patent eligible subject matter.
As cases like Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371
(2015) demonstrate, even a series of highly sophisticated process steps (for
amplifying and detecting paternally inherited nucleic acid in the serum or
12 McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed.
Cir. 2016).
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Application 13/847,247
plasma sample of a pregnant female) does not, by itself, suffice to transform
an abstract idea into patent eligible subject matter.
Thus, on the present record, we find the claims on appeal are more
like those at issue in BASCOM13 than the claims at issue in either Enfzsh or
McRO. That is, "the claims and their specific limitations do not readily lend
themselves to a step-one finding that they are directed to a nonabstract idea.
We therefore defer our consideration of the specific claim limitations'
narrowing effect for step two." BASCOM, 827 F.3d at 1349.
Regarding step-two of the Alice analytical framework, Starr urges that
the claimed processes are patent-eligible under step two of Alice (step 2B of
the then-current USPTO guidelines 14 for rejections under § 101) because,
considered as a whole, as in BASCOM, "they are directed to a specific
implementation of a computerized technique for testing emergency braking
of a hoist system which is significantly more than an abstract idea." (Br. 14,
11. 16-18.)
The Examiner's findings (FR, para. bridging 2-3; Ans., para.
bridging 5---6) that the recited elements were well known, routine, and
conventional in the art, using the formulation approved by the Court, are
attractive, as simple fitting analyses have been an elementary aspect of
standard data analysis pre-dating the ready access to automated
computational resources. Were that the whole of the issue, we might deem
13 BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC,
827 F.3d 1341 (2016).
14 Memorandum of Deputy Commissioner for Patents Policy dated
November 2, 2016.
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Application 13/847,247
the matter reasonably subject to Official Notice. But, as Starr urges, there is
more-here, the specific combination of particular analyses of a particular
braking sequence. (Reply 3--4.) Whether that combination was well known,
routine, or conventional in the hoist-braking art is a question of fact that
must be supported by evidence of record. Berkheimer v. HP Inc., 881 F.3d
1360 (Fed. Cir. 2018), reh 'gen bane den 'd, 890 F.3d 1369 (Fed. Cir. 2018).
As our reviewing court explained many decades ago, "assertions of technical
facts in areas of esoteric technology must always be supported by citation to
some reference work recognized as standard in the pertinent art ....
Allegations concerning specific 'knowledge' of the prior art, which might be
peculiar to a particular art should also be supported ... " In re Ahlert,
424 F.2d 1088, 1091 (CCPA 1970). While hoists are not unfamiliar or
esoteric, the details of their operation are not a matter of common
experience, and it follows that the details of their computerized operation is
not reasonably subject to Official Notice.
We conclude that, on the present record, Starr has demonstrated
harmful error in the appealed rejection, and we therefore reverse. 15
C. Order
It is ORDERED that the rejection of claims 1-19 is reversed.
REVERSED
15 We neither express nor imply any opinion as to the ultimate questions of
patentable subject matter under§ 101, or ofpatentability under, e.g.,§ 103.
11