Jie HuangDownload PDFPatent Trials and Appeals BoardAug 26, 201915041790 - (D) (P.T.A.B. Aug. 26, 2019) Copy Citation 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. Appeal 2018-009204 Application 15/041,790 2 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.”). Appeal 2018-009204 Application 15/041,790 3 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. Appeal 2018-009204 Application 15/041,790 4 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 Appeal 2018-009204 Application 15/041,790 5 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 Appeal 2018-009204 Application 15/041,790 6 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 Appeal 2018-009204 Application 15/041,790 7 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). Appeal 2018-009204 Application 15/041,790 8 (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”. Appeal 2018-009204 Application 15/041,790 9 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). Appeal 2018-009204 Application 15/041,790 10 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). Appeal 2018-009204 Application 15/041,790 11 “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 Appeal 2018-009204 Application 15/041,790 12 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 Appeal 2018-009204 Application 15/041,790 13 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. Appeal 2018-009204 Application 15/041,790 14 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 Appeal 2018-009204 Application 15/041,790 15 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. Appeal 2018-009204 Application 15/041,790 16 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 Appeal 2018-009204 Application 15/041,790 17 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). Appeal 2018-009204 Application 15/041,790 18 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 Copy with citationCopy as parenthetical citation