Keith A. Raniere

Patent Trials and Appeals Board

Dec 27, 2019

12272941 - (D) (P.T.A.B. Dec. 27, 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.
12/272,941 11/18/2008 Keith A. Raniere FIRST.3287US2-NY 7274
5409 7590 12/27/2019
SCHMEISER, OLSEN & WATTS
22 CENTURY HILL DRIVE
SUITE 302
LATHAM, NY 12110
EXAMINER
THAI, XUAN MARIAN
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
12/27/2019 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):
AZ5409@IPLAWUSA.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEITH A. RANIERE
Appeal 2018-000022
Application 12/272,941
Technology Center 3700
Before CHARLES N. GREENHUT, NATHAN A. ENGELS, and
FREDERICK C. LANEY, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–5, 7–13, 18–22, 24–30 and 43. See
Non-Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as First Principles, Inc.
Appeal Br. 1.
Appeal 2018-000022
Application 12/272,941
2
CLAIMED SUBJECT MATTER
The claims are directed to a determination of whether a person is a
particular type of sociopath, for example a Luciferian. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A process for generating a model that is used to detect a
sociopathic response, said process comprising:
providing a processor of a computer capable of executing an
algorithm to determine a polarity of a person’s response to a
combination stimulus based on changes in dopamine levels in a
brain of the person when the combination stimulus is received and
processed by the brain, wherein an electrical activity of the brain
of the person is recorded by medical instrumentation coupled to
the computer, the electrical activity of the brain being in response
to the combination stimulus, wherein the medical instrumentation
picks up the electrical activity of the brain for recording and
analysis that is subsequently processed according to the algorithm
stored in a data processing device to create an electronic dataset to
be used for generating the model;
providing a portion of the electronic dataset that is a subspace of
the electronic dataset, wherein if the determined polarity is stored
within the portion of the electronic dataset, the person's response
is determined to be a sociopathic response;
wherein the combination stimulus comprises an N-component
stimulus vector {S 1, S2, ... , SN} such that N is at least 2, wherein
the determined polarity of the person's response to the combination
stimulus is an N-component polarity vector {P1, P2, ... , PN} such
that P1, P2, ... , PN respectively corresponds to S1, S2, ... , SN,;
wherein the electronic dataset is an M-dimensional space of the
determined polarities such that M:SN, and a value of the
determined polarity located in the portion of the electronic dataset
that is the subspace of the M-dimensional space is positive,
indicating a release of dopamine into the brain of the person;
wherein the combination stimulus relates to selfish desires,
destroying material objects or relationships, causing others pain,
distress, and unhappiness;
wherein the polarity is a value assigned to be either negative or
positive.
Appeal 2018-000022
Application 12/272,941
3
REJECTION
Claims 1–5, 7–13, 18–22, 24–30 and 43 are rejected under 35 U.S.C.
§ 101 because the claimed invention is directed to a judicial exception (i.e., a
law of nature, a natural phenomenon, or an abstract idea) without
significantly more.
OPINION
Principles of Law
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
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. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014) (internal quotation marks and citation omitted).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. See Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs.
v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with
that framework, we first determine what concept the claim is “directed to.”
Id. 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.”); 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);
Appeal 2018-000022
Application 12/272,941
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mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
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 (internal 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. (alteration in the 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.
In January of 2019, the PTO published revised guidance on the
application of § 101. 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY
GUIDANCE, 84 Fed. Reg. 50 (Jan. 7, 2019) (hereinafter “Memorandum”).
Step 2A of that guidance involves determining whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic practice,
or mental processes); and
Appeal 2018-000022
Application 12/272,941
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(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) (9th Ed., Rev.
08.2017, 2018)).
If a claim (1) recites a judicial exception and (2) does not integrate
that exception into a practical application, Step 2B of that guidance involved
determining 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
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high level
of generality, to the judicial exception.
See Memorandum.

Analysis
Claim Grouping
The claims are argued as a group for which we select claim 1 as
representative under 37 C.F.R. § 41.37(c)(1)(iv).

Statutory Category
Claim 1 recites “[a] process for generating a model that is used to
detect a sociopathic response,” and, therefore, is a process.

Recitation of Judicial Exception
The Examiner determined that “claim [1] can be understood to merely
require a human being, such as a psychiatrist, to operate a computer in an
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ordinary way.” Non-Final Act. 6. The Examiner correctly held claim 1
directed to a so-called “mental process”2 coupled with the use of a computer
in an ordinary way. Mental processes involve the use of human observation,
evaluation, judgment (e.g., “‘comparing’ and ‘determining’”) and opinion
(e.g., “believing”). See In re Prater 415 F. 2d 1393, 1402 n. 22 (CCPA
1969). “[M]ental processes. . .are not patentable, as they are the basic tools
of scientific and technological work.” Gottschalk, 409 U.S. at 67 (quoted
with approval in Mayo, 566 U.S. at 71).
Claim 1 recites “executing an algorithm to determine a polarity of a
person’s response to a combination stimulus based on changes in dopamine
levels in the brain.” Paragraph 33 of Appellant’s Specification makes it very
clear that, even without the incidental and generic recitation of “providing a
processor of a computer capable of executing,” this step could be performed
entirely in the human mind:
determination of. . .the polarity of the person 10 [] could also be
made by a human being instead of by the algorithm 22 within the
computer 24, wherein the human being would utilize the same
methodology as is utilized by the algorithm 22.
The incidental use of “computer” or “processor” does not make a claim
otherwise directed to process that “can be performed in the human mind, or

2 The Examiner mentioned “laws of nature” in reference only to specific
aspect of the claim, involving the dopamine response (Non-Final Act. 3), as
opposed to the claim as a whole. The dopamine response may very well be a
law of nature. However, claim 1 only recites actions based on that response
as opposed to the dopamine response itself. Thus, claim 1 as a whole, is
more aptly characterized as being directed to a mental process that involves
observing, classifying, and recording the results of a law of nature—a mental
process.
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by a human using a pen and paper” patent eligible. CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1375, 1372 (Fed. Cir. 2011).
Claim 1 also recites various data analysis steps, such as “providing a
portion of the electronic dataset that is a subspace of the electronic dataset,
wherein if the determined polarity is stored within the portion of the
electronic dataset, the person’s response is determined to be a sociopathic
response”; “the electronic dataset is an M-dimensional space of the
determined polarities such that M≤N, and a value of the determined polarity
located in the portion of the electronic dataset that is the subspace of the M-
dimensional space is positive, indicating a release of dopamine into the brain
of the person”; and “the polarity is a value assigned to be either negative or
positive.” Paragraph 42 of Appellant’s Specification makes it clear that these
data-gathering and recording steps can also be performed in the human
mind:
the recorded physiological responses 12 could be processed by a
human being instead of by data processing hardware.
Paragraph 55 further indicates the instrumentation that can be used for these
data gathering and recording steps includes a writing utensil and paper:
responses 12 may be recorded by instrumentation 20 and
subsequently processed according to an algorithm 22 stored in a
data processing device 24 to determine, and to display as output
26, whether the person 10 is a Luciferian. The instrumentation
20 may include any device (e.g., a sheet of paper, a computer
diskette, etc.) that records physiological responses 12.
It is noted that the recitations relating to the nature of the stimulus are
inconsequential in this analysis because claim 1 does not positively recite
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Application 12/272,941
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any actual manipulative step concerning providing a stimulus.3 Rather, claim
1 is directed to only observing, categorizing, and recording only a person’s
response to a stimulus—something which, as discussed above, can be done
within the human mind or with the assistance of pen or pencil and paper.
Numerous cases have held that the assistance of pen or pencil and paper
does not transform a mental process into something that is patent-eligible.
See, e.g., Versata Dev. Grp. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir.
2015).

Practical Application
Appellant argues:
Appellant’s claims are not attempting to tie up the ideas of
detecting sociopathic responses or the detection of dopamine
levels, the abstract idea and law of nature allegedly identified by
the Examiner. Instead, to the extent the claims include these
alleged ideas or laws of nature, they are merely steps in, or
components of, the novel processes and models claimed by
Appellant. The claims, when viewed as a whole, recite more than
the broad, sweeping idea/law identified by the Examiner,
including specific and limited rules as argued above [at App. Br.
17–18].
App. Br. 19.
The aspects of Appellant’s claim that Appellant regards as “specific
and limited” relate first, to the stimulus, which is not positively recited, as
discussed above, and second, to the polarity assigned to the stimulus. App.

3 It is noted that the stimulus itself is also among the excepted categories of
abstract ideas because it involves the organization of human activity:
“wherein the combination stimulus relates to selfish desires, destroying
material objects or relationships, causing others pain, distress, and
unhappiness”
Appeal 2018-000022
Application 12/272,941
9
Br. 18. Because the stimulus is not a required step of the claimed process, it
cannot impart eligibility to the claim. In re Self, 671 F.2d 1344, 1348 (CCPA
1982). At most, some stimulus having multiple components or vectors must
exist to practice the process. However, the claimed process is directed only
to the observation, categorization and recording of a response to the
stimulus. That categorization and recordation is what involves the so-called
“specific and limited” “polarity vector” and “M-dimensional space.” This
aspect of the claimed process is described in paragraph 51 of the
Specification and illustrated in Figure 7 below:
FIG. 7 shows a projection 45 of the polarity vector P into the
space 46 to determine if the polarity vector P is within the
subspace 48. If the polarity vector P is determined, such as by the
algorithm 22 of FIG. 3, to be within the subspace 48, then the
person 10 of FIG. 3 has is determined to be a Luciferian.

These steps Appellant relies on involve the association of a number of
stimulus components with a positive or negative value (according to claim 1
“the polarity is a value assigned to be either negative or positive.”). There is
little, if anything, said about how this is achieved, other than via algorithm
22. As discussed above, algorithm 22 is something that was expressly
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Application 12/272,941
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disclosed as something that could be, or could be substituted with, a process
performed entirely within the human mind. Thus, these limitations do not
impose any meaningful limits on the abstract idea itself. The absence of any
claim recitations indicating specifically how polarity is assigned does,
contrary to Appellant’s arguments, raise serious concerns of preemption.
Appellant, with these claims would preempt any and all techniques for
determining whether someone has a negative or positive response to certain
events. This includes both mental techniques and physical, technological
ones. Thus we cannot agree that the recited rules for categorizing and
recording a person’s responses limits the claimed subject matter in some
meaningful way so as to recite a practical application.

Well-Understood, Routine, Conventional Activity
Appellant argues:
The Examiner has not provided any basis for, or even alleged
that, the claimed processes or models are well-understood,
routine, or conventional in any field whatsoever; in fact, this
represents another deficiency in the Examiner’s attempt to
present a prima facie case for ineligibility under section 101.
App. Br. 20. Appellant again relies on “the precise rules governing the
stimulus” to assert that “the specific method steps cannot be said to be
conventional when viewed as a whole.” App. Br. 21.
As discussed above, the rules regarding the stimulus itself are
ancillary to the claimed process, not part of it. Furthermore, the rules
themselves are what, for the reasons discussed above, the Examiner regarded
as components of the abstract idea, not routine or conventional activity. The
routine or conventional activity involved the mere use of a “processor of a
computer capable of executing an algorithm”; “the medical instrumentation
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Application 12/272,941
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[that] picks up the electrical activity of the brain”; and the “electronic
dataset.” Non-Final Act. 3–7. The Examiner correctly found that the recited
use of computers having processors and data storage was, both individually
and as an ordered combination, well-understood, routine and conventional.
Non-Final Act. 3–5. The Examiner also correctly found the same with regard
to “the medical instrumentation [that] picks up the electrical activity of the
brain.”4 Non-Final Act. 6–7.

Conclusion
We have considered all of Appellant’s arguments in support of the
patent eligibility of claim 1, but find them unpersuasive. Accordingly, we
sustain the rejection of claims 1–5, 7–13, 18–22, 24–30 and 43 under 35
U.S.C. § 101.
CONCLUSION
The Examiner’s rejection is affirmed.

4 Based on the disclosure associated with “medical instrumentation” being
“a sheet of paper,” reproduced above, it is not clear that “medical
instrumentation” excludes the use of a human mental step when it “picks up
the electrical activity of the brain” because characteristics or changes
observable, and thus “pick[ed] up” by a human could correlate to “electrical
activity of the brain” To the extent “medical instrumentation” is regarded as
something technological or physical, it is regarded as routine or
conventional. To the extent it is regarded as something that could be done by
a human with or without the assistance of a pen or pencil and paper it is
regarded as part of the mental process.
Appeal 2018-000022
Application 12/272,941
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5, 7–13,
18–22, 24–
30, 43
101 Abstract Idea 1–5, 7–13,
18–22, 24–
30, 43

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED