Ex Parte Zagajac et al

Patent Trial and Appeal Board

Jul 31, 2018

14563101 (P.T.A.B. Jul. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/563,101 12/08/2014
28395 7590 08/02/2018
BROOKS KUSHMAN P.C./FG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Jovan Milivoje Zagajac
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.
83477895 1987
EXAMINER
HUTCHINSON, ALAND
ART UNIT PAPER NUMBER
3665
NOTIFICATION DATE DELIVERY MODE
08/02/2018 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOVAN MILIVOJE ZAGAJAC,
ARUN CHOPRA, V ASILIY V. KRIVTSOV, and
OLEG YURIEVITCH GUSIKHIN 1
Appeal2017-009528
Application 14/563,101
Technology Center 3600
Before JOHN C. KERINS, EDWARD A. BROWN, and
ANNETTE R. REIMERS, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Jovan Milivoje Zagajac et al. (Appellants) appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision to reject claims 1-20. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Ford Global Technologies, LLC is indicated as the "real party in interest"
and is also the applicant pursuant to 37 C.F.R. § 1.46. Appeal Brief 2
(hereinafter "Appeal Br.") (filed Feb. 15, 2017).
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Application 14/563, 101
CLAIMED SUBJECT MATTER
The claimed subject matter "generally relate[ s] to a method and
apparatus for connected vehicle system wear estimation and maintenance
scheduling." Spec. ,r 1; Figs. 2A, 2B, 4. Claims 1, 8, and 15 are
independent.
Claim 1 is illustrative of the claimed subject matter and recites:
1. A system comprising:
a processor configured to:
receive vehicle identifying data;
receive vehicle-system wear-related data, including
at least ambient environmental data, based on a utilization
of the vehicle-system;
determine a projected vehicle-system wear-state
based on comparison of aggregated system wear-related
data values to data values of the same data types gathered
from vehicles for which wear measurements were taken;
and
recommend vehicle-system serv1cmg if the
projected wear-state exceeds a replacement threshold.
THE REJECTIONS
I. Claims 1-20 stand rejected under 35 U.S.C. § 101, as being directed
to patent-ineligible subject matter.
II. Claims 1--4, 7-11,2 and 15-18 stand rejected under 35 U.S.C. § I02(a)
as anticipated by Fiechter (US 2003/0114965 Al, published June 19, 2003).
2 The header of this rejection lists claims 1--4 and 15-18 as being anticipated
by Fiechter. Final Office Action 4 (hereinafter "Final Act.") ( dated Sept. 22,
2016). However, the body of the rejection includes a discussion of claims 7-
11. Final Act. 6-7. We understand the omission of claims 7-11 from the
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II. Claims 1-20 stand rejected under 35 U.S.C. § 103 as unpatentable
over Fiechter and Itatsu (US 2014/0100738 Al, published Apr. 10, 2014).
ANALYSIS
Rejection I - Patent-Ineligible Subject Matter
Claims 1-20
Appellants do not offer arguments in favor of claims 2-20 separate
from those presented for independent claim 1. See Appeal Br. 6-7; see also
Reply Br. 2-3. 3 We select claim 1 as the representative claim, and claims 2-
20 stand or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
In rejecting claim 1 under 35 U.S.C. § 101, the Examiner applies the
two-step framework set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 132 S. Ct. 1289, 1296-97 (2012) and reiterated in Alice
Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347, 2355 (2014),
which considers, in the first step, whether the claims are "directed to" a
patent-ineligible concept, e.g., an abstract idea, and then, in a second step,
whether the claims, individually and as an ordered combination, recite an
inventive concept-an element or combination of elements sufficient to
ensure the claims amount to "significantly more" than the abstract idea and
transform the nature of the claims into a patent-eligible concept.
Pursuant to the first step of the analysis, the Examiner determines that
the claims are directed to the abstract idea of "comparing new and stored
header as being a typographical error and claims 1--4, 7-11, and 15-18 to be
rejected under 35 U.S.C. § I02(a) as anticipated by Fiechter. See also
Examiner's Answer 2 (hereinafter "Ans.") (dated Apr. 28, 2017).
3 Reply Brief (hereinafter "Reply Br.") (filed June 28, 2017).
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information and using rules to identify options," which entails nothing more
than "a system[] and a non-transitory computer readable storage medium to
'receive ... data[,]' 'determine ... a state[,]' and 'recommend vehicle-
system servicing."' Final Act. 2-3.
Indeed, our reviewing courts have held claims ineligible under § 101
when directed to data tracking/gathering and data analysis. See Electric
Power Group v. Alstom S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016)
( quoting SmartGene, Inc., 4 in which "analyzing information" was found to
be an abstract idea). Similar to claim 1, the claims in SmartGene, Inc. and
Electric Power Group are directed to data analysis. The claims in Electric
Power Group are even more like claim 1, in that they are both directed to
gathering and analyzing information and then presenting results, without any
particular asserted inventive technology for performing those functions. See
Final Act. 4; Ans. 4; Electric Power Group at 1354.
Although Appellants direct our attention to Example 35 of the
December 2016 Guidance issued by the Office, Appellants do not provide an
explanation as to why the claims are not directed to the abstract idea set
forth by the Examiner. Rather, Appellants' arguments merely restate and
summarize claim limitations. Appeal Br. 6; see also Reply Br. 2-3.
Moreover, according to Appellants, "present[ed] [is a] novel concept of
attempting to estimate when a system will need replacement, without solely
relying on actual measurement of the system itself." Appeal Br. 6.
However, as the Examiner correctly points out, the features of a system not
4 SmartGene, Inc. v. Advanced Biological Labs., S.A., 555 F. Appx. 950 (Fed.
Cir. 2014).
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solely relying on actual measurement "do not appear to actually be recited in
the instant claims." Ans. 3; see In re Self, 671 F.2d 1344, 1348 (CCPA
1982) (Limitations not appearing in the claims cannot be relied upon for
patentability).
Because claim 1 involves merely the concept of tracking and
analyzing information, which the case law precedent cited above
characterizes as being directed to an abstract idea, we agree with the
Examiner's determination that claim 1 is directed to an abstract idea. Final
Act. 2-3; Ans. 4.
We now address the second step of the Alice framework. Under the
second step, the Examiner determines that the claims do not recite additional
limitations amounting to significantly more than the claimed abstract idea,
because the additional limitations only involve routine and conventional
activity. Final Act. 3. In particular, the Examiner finds that "[t]he claim(s)
recite(s) the additional limitations of 'a processor,"" and that "[t]he hardware
is recited at a high level of generality and are recited as performing generic
computer functions routinely used in computer applications." Id. The
Examiner explains that "[g]eneric computer components recited as
performing generic computer functions that are well-understood, routine and
conventional activities amount to no more than implementing the abstract
idea with a computerized system," and thus, "taken alone, the additional
elements do not amount to significantly more than the above-identified
judicial exception (the abstract idea)" and "[l]ooking at the limitations as an
ordered combination adds nothing that is not already present when looking
at the elements taken individually." Id. at 3--4.
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Appellants note that they present a "novel concept of attempting to
estimate when a system will need replacement, without solely relying on
actual measurement of the system itself." Appeal Br. 6. Appellants further
argue that "usage and environmental data are gathered when the system is
used, and this data is used as a comparison to a model," that "[t]he model is
formulated through usage data gathered with respect to vehicles that actually
underwent repair," and that "[t]his presents an improvement to the idea of
computerized maintenance recommendations, and also allows for vehicles
with sensors that do not have to measure every aspect of a system in order to
advocate maintenance." Id. at 6-7; see also Reply Br. 2.
Appellants' arguments are not persuasive. As discussed above, the
features of a system not solely relying on actual measurement are not
claimed. Further, claim 1 does not include limitations directed to use of a
particular model or use of data gathered with respect to vehicles that actually
underwent repair. See Ans. 3; see also Appeal Br. 6-7; In re Self, 671 F.2d
at 1348.
Although Appellants refer to computerized maintenance
recommendations, they do not identify any specific features recited in the
claims that result in improvements to another technology or technical field
or are beyond well-understood, routine, conventional activity. Appeal Br.
6-7; Reply Br. 2-3.
We note Appellants' contention that they "present[] a novel concept"
and that "the Examiner would need a showing of common usage ( or
common sense, supported by a sufficient explanation) to demonstrate that
the claimed invention was mere computerization of a common practice."
Appeal Br. 6-7. However, even assuming that claim 1 is "a novel and
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nonobvious" modification, as the Supreme Court has stated, "[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 v.
Diehr, 450 U.S. 175, 188-89 (1981). Further, as the Examiner points out,
"[ t ]he use of generic computer components that perform the generic
functions of [e.g. 'transmitting information', 'generating information']
common to electronics and computer systems does not impose any
meaningful limit on the computer implementation of the abstract idea."
Final Act. 3--4; see also Spec. ,r 44 ( disclosing that "a general purpose
processor may be temporarily enabled as a special purpose processor for the
purpose of executing some or all of the exemplary methods shown herein").
The Examiner further explains that "[ t ]here is no indication that the
combination of elements improves the functioning of a computer or
improves another technology or technical field," and that "[t]heir collective
functions merely provide conventional computer implementation (i.e. mere
instructions to implement the abstract idea on a generic computing system)."
Ans. 4; see also Final Act. 4. Thus, we are not apprised of Examiner error
based on this argument.
Based on the foregoing, we fail to see how the claimed invention is
something other than data tracking/gathering and data analysis.
Accordingly, claim 1, when its limitations are considered both individually
and as an ordered combination, amounts to nothing more than an attempt to
patent the abstract idea embodied in the steps carried out by a processor.
Thus, the additional limitations of claim 1 fail to transform the nature of the
claim into patent-eligible subject matter.
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For the above reasons, Appellants fail to apprise us of error in the
Examiner's determination that claim 1 is directed to patent-ineligible subject
matter. Accordingly, we sustain the Examiner's rejection of claim 1 as
being directed to patent-ineligible subject matter. We further sustain the
Examiner's rejection of claims 2-20, which fall with claim 1.
Rejection II-Anticipation by Fiechter
Claims 1-4, 7, and 15-18
Appellants do not offer arguments in favor of claims 2--4, 7, and 15-
18 separate from those presented for independent claim 1. See Appeal Br.
7-11; see also Reply Br. 3--4. We select claim 1 as the representative claim,
and claims 2--4, 7, and 15-18 stand or fall with claim 1. Appellants offer
separate arguments in favor of claim 8. See Appeal Br. 10-11; see also
Reply Br. 3--4. We address claim 8 and its dependent claims 9-11
separately below.
Claim 1 is directed to a "system" comprising "a processor configured
to" "receive vehicle-system wear-related data, including at least ambient
environmental data, based on a utilization of the vehicle-system"5 and
"determine a projected vehicle-system wear-state based on comparison of
aggregated system wear-related data values to data values of the same data
types gathered from vehicles for which wear measurements were taken."
Appeal Br. 13, Claims App. The Examiner finds that Fiechter discloses a
system having all the limitations of claim 1. Final Act. 4--5 ( citing Fiecther
5 We note that "the vehicle-system" lacks antecedent basis. See Appeal Br.
13, Claims App.
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,r,r 29, 33-36, 38, 45, 57-59, 69, 74, 100; Table 2). More particularly, the
Examiner finds that Fiechter discloses a processor configured to receive
vehicle-system wear related data ("[ t ]he maintenance status information
contains ... wear information of vehicle components"), including at least
ambient environmental data ("environment[ al] temperature, atmospheric
pressure") based on a utilization of the vehicle-system ("collect data from
vehicle during utilization of vehicle"). Id. at 4. The Examiner explains that
Fiechter discloses the step of receiving vehicle-system wear-related data
"based on a utilization of the vehicle-system" because under a broadest
reasonable interpretation, the limitation merely requiring that the data is
obtained when the system is being used. Id. at 5 ( citing Fiechter ,r 45).
Appellants contend that Fiechter does not disclose receiving vehicle-
system related wear data "based on a utilization of the vehicle-system," and
determining a projected vehicle-system wear-state "based on comparison of
aggregated system wear-related data values to data values of the same data
types gathered from vehicles for which wear measurements were taken."
Appeal Br. 1 O; see also Reply Br. 4. More particularly, Appellants argue
that, of the data from the cited portions of Fiechter, "it appears to be data
gathered throughout the entire course of a journey," and that "[ t ]here is
certainly no teaching of receiving wear-related data from 'a vehicle system-
utilization event' or determining a projected 'system wear-state' based on
comparison of the received data to similar data received from other vehicles
for which wear was actually measured." Appeal Br. 10; see also Reply Br.
4.
Fiechter discloses a "vehicle monitoring system," which, "through the
use of machine learning and data mining technologies on data acquired from
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a plurality of vehicles to create models," "enable[ s] comparison with the
created models to provide continuing analysis of the vehicle with respect to
repair, maintenance and diagnostics."6 Fiechter, Abstract ( emphasis added);
see also id. at ,r,r 29, 34, 35, 37, 38; Final Act. 4--5; Ans. 5-7. Fiechter
further discloses that "[t]he existing classical diagnostics and maintenance
systems operate using algorithm based on ... statistical models,"7 and
"[c]ollect[ing] data from vehicle during utilization of vehicle." Id. at ,r,r 35,
45; Final Act. 4--5; Ans. 5-7. As such, Appellants do not provide sufficient
evidence or argument apprising us of error. Additionally, we note that,
although claim 1 requires the reception of vehicle-system wear-related data
based on a utilization of the vehicle-system, the claim does not exclude
gathering data "throughout the entire course of a journey," and does not
require "a vehicle system-utilization event." See In re Self, 671 F.2d at
1348.
In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 1 as anticipated by
Fietcher. Accordingly, we sustain the Examiner's rejection of claim 1 as
anticipated by Fietcher. We further sustain the Examiner's rejection of
claims 2--4, 7, and 15-18, which fall with claim 1.
6 We note that the Specification similarly discloses that " [ t ]he modeling
process may then use the received data, in conjunction with one or more
models or algorithms to calculate projected wear on the brake pads and other
brake parts." Spec. ,r 55.
7 We note that the Specification similarly discloses that "[b ]y providing this
calculation for a large number of vehicles, a statistical model of maintenance
events as a function of vehicle duty cycle and location/environment can be
obtained." Spec. ,r 34.
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Claims 8-11
Appellants do not offer arguments in favor of dependent claims 9-11
separate from those presented for independent claim 8. See Appeal Br. 10-
11; see also Reply Br. 3--4. We select claim 8 as the representative claim,
and claims 9-11 stand or fall with claim 8.
Independent claim 8 is similar to independent claim 1, but claim 8
specifies "brake wear-related data" instead of the more general "wear-related
data." Appeal Br. 13-15, Claims App. The Examiner finds that Fiechter
discloses "brake wear-related data" as a type of "wear-related data" within
its system. See Final Act. 7 (citing Fiechter ,r,r 3, 33-36).
Appellants contend that Fiechter' s paragraph 3 "teaches nothing more
than that a sensor which measured [brake] pad wear can be processed to
determine [brake] pad wear" and relates to "prior art" systems. Appeal Br.
10-11. As such, Appellants argue that Fiechter's paragraph 3 "has no
particular tie-in to paragraphs 33-36." Id. at 11.
This argument is unpersuasive as paragraphs 33-36 of Fiechter by
themselves disclose the "brake wear-related data." See Final Act. 7. In
other words, even if Fiechter' s paragraph 3 fails to disclose the limitations
"receive brake wear-related data from a brake-utilization event" and
"compare brake wear-related data to data gathered from vehicles for which
actual wear measurements were taken to determine a projected brake wear-
state," we agree with the Examiner that paragraphs 33-36 adequately
disclose these limitations. Fiechter discloses that "[ t ]he system operates on
the basic assumption that sensor data and information from on-board
diagnostic systems are collected and monitored," that "using the available
sensor data, [the system] predicts the expected time to failure or a related
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measure for each system or component that is monitored (e.g., brakes ... ),"
and that "[ t ]he data analysis preventive maintenance approach of the present
invention combines classical approaches to diagnostics with a machine
learning approach based on data from many vehicles." Fiechter ,r,r 33-35
( emphasis added). Fiechter also discloses that a condition monitoring
system "enables the continuous observation of the status of each vehicle
while it is operational in order to provide information with respect to the
exact environmental and operational conditions under which the vehicle is
being used." Id. at ,r 38 (emphasis added). As data is continuously collected
from a sensor and the brakes are monitored, Fiechter would necessarily
acquire data when the vehicle is braking. Moreover, as Fiechter discloses
monitoring the brakes, predicting the expected time to failure of the brakes,
and receiving brake wear-related data from when the vehicle is braking,
Fiechter would necessarily "compare brake wear-related data to data
gathered from vehicles for which actual wear measurements were taken to
determine a projected brake wear-state." See Appeal Br. 14, Claims App.
As such, Appellants do not provide sufficient evidence or argument
apprising us of error.
In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 8 as anticipated by
Fietcher. Accordingly, we sustain the Examiner's rejection of claim 8 as
anticipated by Fietcher. We further sustain the Examiner's rejection of
claims 9-11, which fall with claim 8.
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Rejection II- Obviousness over Fiechter and Itatsu
Claims 1-20
Appellants do not offer arguments in favor of claims 2-20 separate
from those presented for independent claim 1. See Appeal Br. 11-12; see
also Reply Br. 4--5. We select claim 1 as the representative claim, and
claims 2-20 stand or fall with claim 1.
To the extent that Fiechter might be regarded as lacking certain
disclosure, the Examiner finds that "Itatsu teaches receiv[ing] vehicle-
system wear-related data ... based on a utilization of the vehicle [ -] system."
Final Act. 8 ( citing Itatsu ,r 41 ). The Examiner concludes that it would have
been obvious to modify the method of Fiechter "with a means to receive
vehicle-system wear-related data ... based on a utilization of the vehicle
system as taught by Itatsu because the substitution of one known element for
another would have yielded predictable results." Id. at 9.
Appellants contend that Itatsu "states that 'time of operation' (which
is operating hours, not a specific time at which a component is used) can be
used to 'estimate wear,'" that "this has nothing to do with gathering wear-
related data based on utilization of the system," and that combining this
teaching of Itatsu with Feichter "solves none of the previously identified
problems with Feichter, as there is still no teaching of receiving the wear
related data based on system utilization, nor is there any teaching of
comparing the wear related data to data gathered from other vehicles for
which actual wear measurements were taken." Appeal Br. 11; see also
Reply Br. 4--5 (Arguing that the claims specify that "wear-related data [is]
based on utilization of the system").
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Itatsu discloses that "the system 10 calculates the deterioration/wear
or remaining useful life" and that "sensors [] may be used for vehicle
systems, subsystems and components." Itatsu ,r,r 3 8, 40. Itatsu also
discloses "[t]he calculation of wear and remaining useful life by system 10
can be done in different ways depending on the vehicle system, subsystem or
component that is being monitored," "[i]n some of these calculations, a time
period is recorded and tracked by system 10 for use by system 10 as further
described below, "ll} or example, prior diagnostic data can be compared to
present diagnostic data for the same component and degradation of
performance," "[ a] lternately, other diagnostic data and vehicle information
can be combined and used to estimate the wear and provide a visual graphic
120 for the user to see," and "ll} or example, the vehicle mileage or time of
operation can be used to estimate the wear on the vehicle brakes, fuel and
oil/lubrication system components." Id. at ,r 41 (emphasis added); see also
Final Act. 8.
The use of time of operation is presented as an example of a manner
of estimating the wear on vehicle brakes, and the calculation of wear and
remaining useful time of a component can be done in different ways by other
diagnostic data and vehicle information that can be combined. See Itatsu ,r
41. As such, Appellants' contention that Itatsu discloses that the "time of
operation" of the brakes is the only data that is received "based on utilization
of the vehicle-system," is misplaced. Thus, Appellants do not apprise us of
error. Moreover, even if that were the case, Appellants do not exclude time
of operation as a "vehicle-related wear data." See In re Self, 671 F.2d at
1348.
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We also note that Itatsu is not relied upon to teach comparing the wear
related data to data gathered from other vehicles for which actual wear
measurements were taken. See In re Keller, 642 F.2d 413 (CCPA 1981); In
re Merck & Co., 900 F.2d 1091 (Fed. Cir. 1986). Thus, we are not apprised
of error based on this argument.
In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 1 as unpatentable over
Fietcher and Itatsu. Accordingly, we sustain the Examiner's rejection of
claim 1 as unpatentable over Fietcher and Itatsu. We further sustain the
Examiner's rejection of claims 2-20, which fall with claim 1.
DECISION
We AFFIRM the decision of the Examiner to reject claims 1-20 as
directed to patent-ineligible subject matter.
We AFFIRM the decision of the Examiner to reject claims 1--4, 7-11,
and 15-18 as anticipated by Fiechter.
We AFFIRM the decision of the Examiner to reject claims 1-20 as
unpatentable over Fiechter and Itatsu.
No time period for taking any subsequent action in connection with
this appeal may be extended according to 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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