Jie Huang

Patent Trials and Appeals Board

Aug 26, 2019

15041790 - (D) (P.T.A.B. Aug. 26, 2019)

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.
15/041,790 02/11/2016 Jie HUANG MP6040-534513 4152
123859 7590 08/26/2019
Drinker Biddle & Reath LLP (Marvell)
191 N. Wacker Drive
Chicago, IL 60606
EXAMINER
VALLECILLO, KYLE
ART UNIT PAPER NUMBER
2112
NOTIFICATION DATE DELIVERY MODE
08/26/2019 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):
DBRIPDocket@dbr.com
ipdockets@dbr.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JIE HUANG
____________

Appeal 2018-009204
Application 15/041,790
Technology Center 2100
____________

Before ST. JOHN COURTENAY III, LARRY HUME, and
PHILLIP A. BENNETT, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1–9, 11–21, 23 and 24, which are all the claims pending in this
application.1 Claims 10 and 22 are cancelled. We have jurisdiction over the
pending claims under 35 U.S.C. § 6(b).
We affirm.

1 The real party in interest is Marvell International, Ltd. App. Br. 2.
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STATEMENT OF THE CASE 2
Introduction
Appellant’s claimed invention “relates generally to multi-antenna
wireless systems and, more particularly, to multi-stream soft demodulation
using hard decisions.” Spec. ¶ 3.
Exemplary Claim
1. A method for communicating in a wireless
communication network, the method comprising:

receiving, at a communication device, a plurality of data
symbols, wherein the plurality of received data symbols
corresponds to a plurality of quadrature amplitude modulation
(QAM) transmitted data symbols that has been affected by
noise and channel effects, each QAM transmitted data symbol
comprising a set of bits, and each QAM transmitted data
symbol transmitted via a respective spatial stream of a multiple
input multiple output (MIMO) communication channel, and
wherein the plurality of received data symbols are received at
the communication device at substantially the same time;

determining, at a demodulator of the communication
device based on the received data symbols, a plurality of sets of
distance metrics corresponding to the QAM transmitted data
symbols, wherein the demodulator is implemented on an
integrated circuit (IC), and wherein

determining a particular set of distance metrics
corresponding to a particular QAM transmitted data symbol
includes

2 We herein refer to the Final Office Action, mailed Oct. 23, 2017 (“Final
Act.”); Appeal Brief, filed Mar. 27, 2018 (“App. Br.”); Examiner’s Answer,
mailed July 26, 2018 (“Ans.”), and the Reply Brief, filed Sept. 26, 2018
(“Reply Br.”).
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determining, at the demodulator, candidate data values
for the particular QAM transmitted data symbol, including
using a hard-decision technique to estimate one or more second
subsets of bits of the particular transmitted data symbol for
possible values of a first subset of bits of the particular
transmitted data symbol,

estimating, at the demodulator and using the hard-
decision technique, data values of the other one or more
transmitted data symbols, of the plurality of data symbols, for
the determined candidate data values of the particular
transmitted data symbol, and

determining, at the demodulator, distance metrics for the
candidate data values and the estimated data values and without
determining distance metrics for all possible data values for the
particular QAM transmitted data symbol, wherein each distance
metric corresponds to a distance between i) a received data
symbol and ii) an estimate of QAM constellation point affected
by channel effects and corresponding to the candidate value or
the estimated data value; and

calculating, at the communication device, likelihood
values for bits of the QAM transmitted data symbols using a
soft maximum-likelihood (ML) technique based on the plurality
of sets of distance metrics.
Appeal Br. 14–15, “APPENDIX A.”

Rejection
Claims 1–9, 11–21, 23 and 24 are rejected under 35 U.S.C. § 101, as
being directed to a judicial exception, without significantly more.

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ANALYSIS
We have considered all of Appellant’s arguments and any evidence
presented. To the extent Appellant has not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 41.37(c)(1)(iv).
We have reviewed Appellant’s arguments in the Briefs, the
Examiner’s Rejection, and the Examiner’s responses to Appellant’s
arguments. Based upon our review, and for the reasons discussed below,
Appellant does not provide sufficient argument or evidence to persuade us
the Examiner erred with respect to the rejection on appeal. See Ex parte
Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Rejection of Claims 1–9, 11–21, 23, and 24 under 35 U.S.C. § 101
Issue: Under 35 U.S.C. § 101, did the Examiner err by rejecting
claims 1–9, 11–21, 23, and 24, as being directed to a judicial exception,
without significantly more?
Principles of Law — 35 U.S.C. § 101
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme ‘Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “‘[L]aws of nature, natural phenomena, and
abstract ideas’ are not patentable.” Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 70 (2012) (quoting Diamond v. Diehr,
450 U.S. 175, 185 (1981)).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
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and Alice. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217–18
(2014) (citing Mayo, 566 U.S. at 75–77). In accordance with that
framework, we first determine what concept the claim is “directed to.” See
Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to the
concept of intermediated settlement, i.e., the use of a third party to mitigate
settlement risk.” (emphasis omitted)); see also Bilski v. Kappos, 561 U.S.
593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the
basic concept of hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding of rubber products” (Diehr, 450 U.S. at 193); “tanning,
dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores”
(id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. (15 How.) 252, 267–68
(1854))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane
v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
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protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (citation omitted). “A claim
that recites an abstract idea must include ‘additional features’ to ensure ‘that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea].’” Id. (alterations in original) (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
Subject Matter Eligibility — 2019 Revised Guidance
The USPTO recently published revised guidance on the application of
35 U.S.C. § 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019 Revised Guidance”). This
new guidance is applied in this Opinion. Under the 2019 Revised Guidance,
we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings
of abstract ideas (i.e., mathematical concepts, mental processes,
or certain methods of organizing human activity such as a
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fundamental economic practice or managing personal behavior
or relationships or interactions between people);3 and

(2) additional elements that integrate the judicial
exception into a practical application (see Manual of Patent
Examining Procedure (“MPEP”) §§ 2106.05(a)–(c), (e)–(h)).4,5
See 2019 Revised Guidance, 84 Fed. Reg. at 51–52, 55.
A claim that integrates a judicial exception into a practical application
applies, relies on, or uses the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception. See 2019
Revised Guidance, 84 Fed. Reg. at 54. When the judicial exception is so
integrated, then the claim is not directed to a judicial exception and is patent
eligible under § 101. Id.
Only if a claim: (1) recites a judicial exception, and (2) does not
integrate that exception into a practical application, do we then evaluate
whether the claim provides an inventive concept. See 2019 Revised
Guidance, 84 Fed. Reg. at 56; Alice, 573 U.S. at 217–18.
For example, we look to whether the claim:
(3) adds a specific limitation beyond the judicial
exception that is not “well-understood, routine, conventional”
in the field (see MPEP § 2106.05(d)); or

3 Referred to as “Step 2A, Prong One” in the 2019 Revised Guidance.
4 Referred to as “Step 2A, Prong Two” in the 2019 Revised Guidance.
5 All references to the MPEP are to the Ninth Edition, Revision 08.2017
(rev. Jan. 2018).
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(4) simply appends well-understood, routine, and
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial exception. 6
See 2019 Revised Guidance, 84 Fed. Reg. at 56.
Because there is no single definition of an “abstract idea” under Alice
step 1, the PTO has recently synthesized, for purposes of clarity,
predictability, and consistency, key concepts identified by the courts as
abstract ideas to explain that the “abstract idea” exception includes the
following three groupings:
1. Mathematical concepts—mathematical relationships,
mathematical formulas or equations, mathematical
calculations;
2. Mental processes— concepts performed in the human mind
(including an observation, evaluation, judgment, opinion);
and
3. Certain methods of organizing human activity—fundamental
economic principles or practices (including hedging,
insurance, mitigating risk); commercial or legal interactions
(including agreements in the form of contracts; legal
obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior
or relationships or interactions between people (including
social activities, teaching, and following rules or
instructions).
See 2019 Revised Guidance, 84 Fed. Reg. at 52.
According to the 2019 Revised Guidance, “[c]laims that do not recite
[subject] matter that falls within these enumerated groupings of abstract

6 Items (3) and (4) continue to be collectively referred to as a search for an
inventive concept or “step two” of the Supreme Court’s two-step framework,
as described in Alice 573 U.S. at 217-18. Referred to infra under the 2019
Revised Guidance as “The Inventive Concept – Step 2B”.
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ideas should not be treated as reciting abstract ideas,” except in rare
circumstances. Even if the claims recite any one of these three groupings of
abstract ideas, these claims are still not “directed to” a judicial exception
(abstract idea), and thus are patent eligible, if “the claim as a whole
integrates the recited judicial exception into a practical application of that
exception.” See 2019 Revised Guidance, 84 Fed. Reg. at 53.
For example, claim limitations that are indicative of integration into a
practical application include:
1. Improvements to the functioning of a computer, or to any
other technology or technical field — see MPEP
§ 2106.05(a);
2. Applying the judicial exception with, or by use of, a
particular machine — see MPEP § 2106.05(b);
3. Effecting a transformation or reduction of a particular
article to a different state or thing — see MPEP
§ 2106.05(c); and
4. Applying or using the judicial exception in some other
meaningful way beyond generally linking the use of the
judicial exception to a particular technological
environment, such that the claim as a whole is more than
a drafting effort designed to monopolize the exception —
see MPEP § 2106.05(e).
In contrast, claim limitations that are not indicative of integration into
a practical application include:
1. Adding the words “apply it” (or an equivalent) with the
judicial exception, or merely include instructions to
implement an abstract idea on a computer, or merely uses
a computer as a tool to perform an abstract idea — see
MPEP § 2106.05(f);
2. Adding insignificant extra-solution activity to the judicial
exception — see MPEP § 2106.05(g); and
3. Generally linking the use of the judicial exception to a
particular technological environment or field of use —
see MPEP 2106.05(h).
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See 2019 Revised Guidance, 84 Fed. Reg. at 54–55 (“Prong Two”).
2019 Revised Guidance, Step 2A, Prong One 7
The Judicial Exception
Under the 2019 Revised Guidance, we begin our analysis by first
considering whether the claims recite any judicial exceptions, including
certain groupings of abstract ideas, in particular: (a) mathematical concepts,
(b) mental steps, and (c) certain methods of organizing human activities.
The Examiner concludes: “adding one abstract idea (math) to another
abstract idea (encoding and decoding) does not render the claim non-
abstract.” Final Act. 8.
Turning to independent method claim 1, the claim recites the steps or
acts of: “determining . . . a plurality of sets of distance metrics . . .
determining . . . candidate values for the particular QAM transmitted data
symbol . . . estimating . . . data values of the other one or more transmitted
symbols . . . determining . . . distance metrics for the candidate data . . . and
calculating . . . likelihood values for bits of the QAM transmitted data
symbols . . . .” Claim 1. We note independent apparatus claim 13, the only
other independent claim, recites functions commensurate to the steps or acts
recited in method claim 1. Thus, we conclude both independent claims 1
and 13 recite an abstract idea, i.e., mathematical concepts, relationships, and
calculations. See 2019 Revised Guidance, 84 Fed. Reg. at 52.
We also note the additional non-abstract limitations of generic
computer components: “a wireless communication network,”

7 Throughout this opinion, we give the claim limitations the broadest
reasonable interpretation consistent with the Specification. See In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
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“a communication device,” and “a demodulator of the communication
device.” (claim 1). Similarly, independent claim 13 recites: “a wireless
communication network,” “a communication device,” “a network interface
device,” and “one or more integrated circuits (ICs).” See 2019 Revised
Guidance, 84 Fed. Reg. at 52. We note McRO, Inc. v. Bandai Namco Games
America Inc. (837 F.3d 1299 (Fed. Cir. 2016)) guides: “[t]he abstract idea
exception prevents patenting a result where ‘it matters not by what process
or machinery the result is accomplished.’” 837 F.3d at 1312 (quoting
O’Reilly v. Morse, 56 U.S. 62, 113 (1854)) (emphasis added).
Because we conclude all claims on appeal recite an abstract idea, as
identified above, under Step 2A, Prong One, we proceed to Step 2A, Prong
Two.
2019 Revised Guidance, Step 2A, Prong Two
Integration of the Judicial Exception into a Practical Application
Pursuant to the 2019 Revised Guidance, we consider whether there
are additional elements set forth in the claims that integrate the judicial
exception into a practical application. See 2019 Revised Guidance, 84 Fed.
Reg. at 54–55. We have identified supra the additional non-abstract
elements recited in independent claim 1 as the generic: “wireless
communication network,” “communication device,” and “demodulator of
the communication device.”
Appellant contends “[T]he method of claim 1 of the present
application improves the functioning of a communication device.” App.
Br. 9. In particular, Appellant contends:
[C]laim 1 improves the functioning of a communication device
(e.g., a demodulator of the communication device) by providing
technical advantages such as one or more of: increasing
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processing speed of the demodulator, reducing hardware
complexity of the demodulator, reducing the number of
processing components of the demodulator, reducing the cost of
the hardware components of the demodulator, etc. See e.g.,
Application at pars. 0041-0043, 0046, 0047, 0051, and 0052.
App. Br. 6–7.
However, we find Appellant’s assertions, without more explanation in
support, are conclusory. Id. More specifically, Appellant does not explain
how the description in the cited paragraphs demonstrate that the claim
provides the asserted technical advantages. Appellant provides a cursory
reference to DDR Holdings, Enfish, and McRo, in support of improvements
in communication technology. App. Br. 11. Although the steps recited in
Appellant’s claims may be performed faster or more efficiently with the
recited “demodulator” of claims 1 and 13, without more explanation or
description in support, we find the resultant speed increase comes from a
“general-purpose computer, rather than from the . . . method itself,” and
does “not materially alter the patent eligibility of the claimed [invention].”
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir.
2016) (citation omitted).
Appellant notes that “in Recognicorp, the court found that the claims
of U.S. Patent No. 8,005,303 were not directed to a ‘method that improves
the functioning of a computer.’ On the other hand . . . the method of claim 1
of the present application improves the functioning of a communication
device.” App. Br. 9.
However, in RecogniCorp, LLC v. Nintendo Co., Ltd. (855 F.3d 1322
(Fed. Cir. 2017)), the court concluded that the claimed concept of
performing a mathematical operation on one set of data to obtain a new set
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of data was patent ineligible, which we conclude is analogous to the claimed
estimating of “data values of the other one or more transmitted data symbols
of the plurality of data symbols, for the determined candidate data values of
the particular transmitted data symbol.” Claim 1.
Appellant advances no arguments regarding the method claims on
appeal that might be analyzed under either MPEP § 2106.05(b), as being tied
to a particular machine, or under MPEP § 2106.05(c), as transforming
physical subject matter to a different state or thing.
Appellant’s claims merely perform determinations and calculations
using mathematical relationships based upon received data symbols. As
such, we conclude representative claim 1 has no other argued meaningful
limitations (see MPEP § 2106.05 (e)), and merely recites instructions to
execute the abstract idea on a communication device in a wireless
communication network (see MPEP § 2106.05(f)).
We additionally conclude the first recited step or act of “receiving, at
a communication device, a plurality of data symbols” (Claim 1) is merely
insignificant extra-solution activity. See MPEP § 2106.05(g).
Therefore, we conclude claims 1–9, 11–21, 23, and 24 on appeal do
not present any other issues set forth in the 2019 Revised Guidance
regarding a determination of whether the additional generic elements
integrate the judicial exception into a practical application. See Revised
Guidance, 84 Fed. Reg. at 55. Rather, we conclude the claims on appeal
merely implement an abstract idea on a wireless communication network
and use a communication device as a tool to perform the abstract idea. Id.
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Thus, under Step 2A, Prong Two (MPEP §§ 2106.05(a)–(c) and
(e)–(h)), we conclude claims 1–9, 11–21, 23 and 24 do not integrate the
judicial exception into a practical application.
Therefore, we proceed to Step 2B, The Inventive Concept.
The Inventive Concept – Step 2B
Under the 2019 Revised Guidance, only if a claim: (1) recites a
judicial exception, and (2) does not integrate that exception into a practical
application, do we then look to whether the claim adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional” in the field (see MPEP § 2106.05(d)); or, simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception.
Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018)
The Examiner finds: “Applicant’s claimed invention uses an
algorithm for demodulating and decoding received information, which is a
predictable and conventional outcome following a sequence of events for
unpacking received information.” Final Act. 6 (mailed Oct. 23, 2017).
We note Berkheimer was decided by the Federal Circuit on
February 8, 2018. Berkheimer established that the question of “[w]hether
something is well-understood, routine, and conventional to a skilled artisan
at the time of the patent is a factual determination.” Berkheimer, 881 F.3d
at 1369. As the Federal Circuit explained: “[w]hether a particular
technology is well-understood, routine, and conventional goes beyond what
was simply known in the prior art. The mere fact that something is disclosed
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in a piece of prior art, for example, does not mean it was well-understood,
routine, and conventional.” Id.
On April 19, 2018, the PTO issued the Memorandum titled:
“Changes in Examination Procedure Pertaining to Subject Matter Eligibility,
Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.)”
(hereinafter “Berkheimer Memorandum”).8 The Berkheimer Memorandum
(3–4) requires the Examiner to support a finding that a claim limitation is
well-understood, routine, and conventional with at least one of the following
specific types of evidence:
1. “A citation to an express statement in the specification or to a
statement made by an applicant during prosecution that
demonstrates the well-understood, routine, conventional nature
of the additional element(s).”

2. “A citation to one or more of the court decisions discussed in
MPEP § 2106.05(d)(II) as noting the well-understood, routine,
conventional nature of the additional element(s).”

3. “A citation to a publication that demonstrates the well-
understood, routine, conventional nature of the additional
element(s)”

4. “A statement that the examiner is taking official notice of the
well-understood, routine, conventional nature of the additional
element(s).”
Berkheimer Memorandum 3–4.
Appellant does not mention Berkheimer in the Appeal Brief that was
filed on March 27, 2018, over a month after Berkheimer was decided.

8 Available at https://www.uspto.gov/sites/default/files/documents/memo-
berkheimer-20180419.PDF.
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However, Appellant argues Berkheimer in the Reply Brief that was filed on
September 26, 2018. See Reply Br. 3.
In the Answer (8–9), the Examiner provides new evidence to support
a finding that the claimed “communication device” is well understood,
routine, and conventional:
The claimed “communication device”, including the MIMO
antennas and demodulator capable of demodulating several
different QAM modulation schemes, is conventional and well-
known as evidence of its disclosure in the “Background” section
of the specification. See Spec. ¶¶ 4-5; see also Spec. ¶ 15
(“While the demodulation schemes described herein are
described as being used in communication systems that use one
of the IEEE Standard 802.11 communication standards (e.g.,
IEEE 802.11 ac Standard), these techniques may be used in
various other types of wireless communication systems and are
not limited to those conforming to one or more of the IEEE
Standard 802.11 standards. For example, these techniques may
be used in communication systems based on the IEEE 802.16e,
802.16j, or 802.16m standards (known as “WiMAX”), mobile
telephony communication systems, etc.”). Generic computing
elements, alone or arranged in a conventional and well known
manner, do not amount to significantly more than the judicial
exception. Therefore, the claim is not patent eligible.
Ans. 8–9 (emphasis added).
The Examiner makes similar new findings and relies upon new
evidence regarding independent claim 13:
The Examiner further finds the claimed “network interface
device . . . including one or more integrated circuits (ICs)” is a
conventional and well-known WLAN transceiver as discussed
in paragraph 16 of the specification. See also e.g., Wangard
(U.S. Patent Application Publication 2008/0026718 A1) ¶ 14
(“These transceivers operate in a manner familiar to those
skilled in the art and can be implemented as separate integrated
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circuits (ICs) added to a cellular telephone to provide additional
communication modes (many such conventional ICs, such as
WLAN transceiver ICs or Bluetooth transceiver ICs, are on the
market as chipsets today), thereby enabling the multimode RF
wireless communication device 100 to communicate in a
plurality of radio access technologies”). Generic computing
elements, alone or arranged in a conventional and well known
manner, do not amount to significantly more than the judicial
exception. Therefore, the claim is not patent eligible.
Ans. 10 (emphasis added).
Because the Examiner makes new findings and relies upon new
evidence in the “Response to Arguments” section of the Answer (8–10),
Appellant’s Berkheimer arguments in the Reply Brief are timely.
In reviewing the Reply Brief, we note Appellant, invoking
Berkheimer, argues the Examiner has not shown that the “determining”
limitation recited in claim 1 is conventional. Reply Br. 3. In support,
Appellant’s restate essentially the same argument previously advanced on
pages 6 and 7 of the Appeal Brief:
As explained in the Application, the method of claim 1
improves the functioning of a communication device (e.g., a
demodulator of the communication device) by providing
technical advantages such as one or more of: increasing
processing speed of the demodulator, reducing hardware
complexity of the demodulator, reducing the number of
processing components of the demodulator, reducing the cost of
the hardware components of the demodulator, etc. See e.g.,
Application at par[a]s. 0041-0043, 0046, 0047, 0051, and 0052.
Such technical advantages are achieved at least because
"distance metrics for all possible data values for the particular
QAM transmitted data symbol," are not determined, as recited
in claim 1.
Reply Br. 4 (emphasis added).
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However, the Examiner points to Appellant’s Specification in support
that the additional limitations of claim 1, i.e., the “communication device,”
including MIMO antennas and [a] demodulator capable of demodulating
QAM modulation schemes, are in fact routine and conventional elements.
See Ans. 8, 9, citing Appellant’s Spec. ¶¶ 4–5, 15.
We additionally note that Appellant’s Specification describes the
claimed hardware as generic components. See Spec. ¶ 59.
Further, regarding the use of the generic, recited “communication
device” and “demodulator” (claim 1), and the “a network interface
associated with a communication device,” “including integrated circuits”
(claim 13), the Supreme Court has held “the mere recitation of a generic
computer cannot transform a patent-ineligible abstract idea into a patent-
eligible invention.” Alice, 573 U.S. at 223.
Our reviewing court provides additional guidance, including in
FairWarning, 839 F.3d at 1096 (“the use of generic computer elements like
a microprocessor or user interface do not alone transform an otherwise
abstract idea into patent-eligible subject matter”), and OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (claims reciting,
inter alia, sending messages over a network, gathering statistics, using a
computerized system to automatically determine an estimated outcome, and
presenting offers to potential customers found to merely recite “‘well-
understood, routine conventional activit[ies]”’ by either requiring
conventional computer activities or routine data-gathering steps (alteration
in original, internal citation omitted)).
This guidance is applicable here. Accordingly, on the record before
us, we are not persuaded that any of Appellant’s claims on appeal add a
Appeal 2018-009204
Application 15/041,790

19
specific limitation, beyond the judicial exception, that is more than what was
well-understood, routine, and conventional in the field. See MPEP
§ 2106.05(d).
In light of the foregoing, we conclude, under the 2019 Revised
Guidance, that each of Appellant’s claims 1–9, 11–21, 23 and 24, considered
as a whole, is directed to a patent-ineligible abstract idea that is not
integrated into a practical application and does not include an inventive
concept. Accordingly, for the reasons discussed above, we sustain the
Examiner’s rejection under 35 U.S.C. § 101 of all claims 1–9, 11–21, 23
and 24 on appeal.
CONCLUSION
The Examiner did not err in rejecting claims 1–9, 11–21, 23, and 24
under 35 U.S.C. § 101, as being directed to a judicial exception, without
significantly more.
DECISION
We affirm the Examiner’s decision rejecting claims 1–9, 11–21, 23,
and 24 under 35 U.S.C. § 101.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED