LH Taylor Associates, Inc.

Patent Trials and Appeals Board

Sep 17, 2020

2020004192 (P.T.A.B. Sep. 17, 2020)

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.
14/971,878 12/16/2015 Lawnie Henderson Taylor 7400
7590 09/17/2020
LAWNIE HENDERSON TAYLOR
14421 BROOKMEAD DRIVE
GERMANTOWN, MD 20874
EXAMINER
BOYER, CHARLES I
ART UNIT PAPER NUMBER
1761
MAIL DATE DELIVERY MODE
09/17/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LAWNIE HENDERSON TAYLOR
____________

Appeal 2020-004192
Application 14/971,878
Technology Center 1700
____________

Before ROMULO H. DELMENDO, KAREN M. HASTINGS, and
JANE E. INGLESE, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Appellant1 requests our review under 35 U.S.C. § 134 of the
Examiner’s decision rejecting claims 131–153. We have jurisdiction over
the appeal under 35 U.S.C. § 6(b).

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 “Lawnie
H. Taylor” (Appeal Br. 4). We note there was a previous appeal in this case,
wherein we affirmed the Examiner’s rejection of similar subject matter
(2018–005029). As the Examiner points out, a closely related case, In re
Taylor, (Fed. Cir. 2015 (No. 15-1582) was decided in prior application
13/067,574 (wherein the court affirms the Board’s decision holding all
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We AFFIRM.

Claim 131 is illustrative:
131. A method for prescribing the natural fabric effect
quality of a hypochlorite bleach composition, said quality in the
range of fabric-damaging to abated-damaging to cotton-safe,
said composition in the process of formulation,
wherein the amounts of the essential components of a
bleach composition are expressed in a ratio value as wt %
alkali-metal hydroxide over wt % alkali-metal hypochloride-
salt, or the reciprocal, wherein a selected ratio value defines the
desired natural fabric effect quality of the composition (eg.,
1:30 – fabric-damaging, 1:2– cotton-safe, etc.),
wherein a bleach composition so composed and set with
a natural fabric effect quality must be characterized by the
selected ratio value that defines said fabric effect quality,
wherein said ratio value and the amount of an essential
component are expressed as known factors of the ratio equation
by which the amount of the other essential component is
determined and limited,
wherein a bleach composition composed with a
prescribed natural fabric effect quality in the range of damaging
to abated-damaging to cotton-safe comprises,
(a) an amount of an alkali-metal hypochlorite -salt, as
a known factor of a ratio equation, said amount effective for
cleaning stain from a soft-fabric article,
(b) an amount of an alkali-metal hydroxide as an
unknown term of the ratio equation, said amount calculated by
(a) and (c),
(c) a ratio value, as a known factor of the ratio
equation, said value selected in the range 1:30 to 1:1, or

claims of the ’574 Application unpatentable) (Ans. 13); see also In re
Taylor, 445 F. App’x 343 (Fed. Cir. 2011) (Fed. Cir. 2011), which was
decided in prior application 11/505,445 (wherein the court affirms the
Board’s decision holding all claims of the ’445 Application unpatentable).
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reciprocal value selected in the range 30:1 to 1.1, to set the
prescribed quality of natural fabric effect of the bleach
composition in the range of fabric-damaging to abated-
damaging to cotton-safe;
wherein the pH of said composition is at least 11.

Claim 145, the only other independent claim, is directed to a bleach
product with a ratio value of alkali metal hypochlorite salt to alkali metal
hydroxide “selected” in the range of 1:30 to 1:1 or its reciprocal, similar to
claim 131, “to set the quality of natural fabric safety of the bleach product”
(Claims Appendix filed Feb. 21, 2020).
The Examiner maintains, and Appellant appeals, the following
rejections:
I. Claims 131–144 under 35 U.S.C. § 112, ¶ 2, as indefinite;
II. Claims 131–144 under 35 U.S.C. § 101 because the claimed
invention is directed to non-statutory subject matter;
III. Claims 131–153 under 35 U.S.C. §102(b) as anticipated by, or
in the alternative under § 103(a) as obvious over, Scialla (US 6,120,555,
issued Sept. 19, 2000);
IV. Claims 131–135, 137–149, and 151–153 under 35 U.S.C.
§ 102(b) as anticipated by, or in the alternative under § 103(a) as obvious
over, Agostini (US 6,416,687 Bl; issued July 9, 2002); and
V. Claims 131–135, 137–149, and 151–153 under 35 U.S.C.
§ 102(b) as anticipated by, or in the alternative under § 103(a) as obvious
over, Grande (US 6,448,215 B1, issued Sept. 10, 2002).
At the outset, we note this appeal is from the Examiner’s Non-final
action mailed April 4, 2019 (after the previous Board Decision in Appeal
No. 2018-005029). This Examiner’s Non-final action explicitly set forth the
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§ 112 rejection and the § 101 rejection of claims 131–144 and did not
explicitly set out in full the prior art rejections. However, the Examiner
stated that all such rejections made “under 35 USC 102 and 35 USC 103 set
forth in the Examiner’s Answer dated 2/22/2018 are maintained for the
reasons of record.” (Non-Final Act. 7). The Examiner further set out these
prior art rejections in the Examiner’s Answer mailed March 10, 2020.
Accordingly, all of these rejections listed at I. to V. above are properly
before us.

ANALYSIS
The Rejection under 35 U.S.C. § 112, ¶ 2, as indefinite
During prosecution, claims are definite if they “set out and
circumscribe a particular area with a reasonable degree of precision and
particularity.” In re Moore, 439 F.2d 1232, 1235 (CCPA 1971).
The Examiner found the language of independent method claim 131
indefinite because it “does not include a single positive method step” (Ans.
4), nor can one determine “how the ratio has been calculated or selected” as
there is no requirement for any specific definite amounts of bleach
components (id.; the Examiner also asks “how is [the ratio] known?”).
In prosecution before the PTO “[i]t is the applicants’ burden to
precisely define the invention, not the PTO’s.” In re Morris, 127 F. 3d
1048, 1056 (Fed. Cir. 1997). The purpose of this requirement is to provide
the public with adequate notice of the boundaries of protection involved.
The time to do so is during prosecution where an applicant has the ability to
amend the claims to more precisely define the metes and bounds of the
claimed invention. See Ex parte Miyazaki, 89 USPQ2d 1207, 1210–12
(BPAI 2008).
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Notably, method claim 131 does not recite any positive method steps.
Contrary to Appellant’s contention that clauses (a) though (c) are “Steps”
(Appeal Br. 10), these clauses do not recite any positive physical method
steps (such as mixing, etc.). The claim recites a method “for prescribing”
the quality of a bleach composition. The broadest reasonable interpretation
and plain meaning of “prescribing” includes recommending or stating as a
rule that a procedure should be carried out.2 The claim as written
encompasses no more than a mental exercise in recommending or deciding
many different formulations of a bleach composition.
In light of these circumstances, we affirm the Examiner’s § 112,
second paragraph rejection.
The Rejection under 35 U.S.C. § 101
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 U.S. 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).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part framework, described in Mayo and Alice.
Id. 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.” See Alice, 573 U.S. at
219 (“On their face, the claims before us are drawn to the concept of

2 See, e.g., https://www.lexico.com/definition/prescribe.
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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);
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 waterproof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
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
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 Court
also indicated that a claim “seeking patent 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. (citation omitted)
(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
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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 recites an abstract idea, we turn to the second part 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 (quotation marks 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.
USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“2019 Revised Guidance”).3 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.

3 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “October
2019 Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
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Pursuant to applicable statute and precedential decisions and
consistent with the 2019 Revised Guidance and the October 2019 Update,
we first look to 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) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).4
2019 Revised Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, 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
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
2019 Revised Guidance, 84 Fed. Reg. at 52–56.

4 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See 2019 Revised Guidance — Section III(A)(2), 84
Fed. Reg. 54–55.
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§ 101 Analysis of Claims 131–144
Appellant argued the claims as a group in this rejection, thus we select
claim 131 as representative of these method claims. 37 C.F.R.
§ 41.37(c)(1)(iv).
Appellant contends that claim 131 was “amended [ ] to remove the
mental activity phrasing” to make it comparable to claim 145 which is
directed to a composition (Appeal Br. 11). Appellant also argues that “the
Examiner made no effort to comply with the instructions of the USPTO
[guidance] dated 4 May 2016” (id. at 12) (emphasis omitted).
These arguments are not persuasive of error in the Examiner’s
rejection as to method claim 131 (claim 131 remains directed to a method).
The 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg.
50 (Jan. 7, 2019), hereinafter “2019 Revised Guidance,” was in effect at the
time the Appeal Brief was filed (Oct. 8, 2019).
Claim 1 covers a “method” and is thus statutory subject matter for
which a patent may be obtained.5 This is not in dispute.
As discussed earlier, § 101, however, “contains an important implicit
exception: Laws of nature, natural phenomena, and abstract ideas are not
patentable.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014)
(quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 589 (2013)).

5 This discussion corresponds to Step 1 of the 2019 Revised 101 Guidance
which requires determining whether a “claim is to a statutory category.”
2019 Revised Guidance, 84 Fed. Reg. at 53; see also id. at 53–54
(“consider[] whether the claimed subject matter falls within the four
statutory categories of patentable subject matter identified by 35 U.S.C.
101”).
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In that regard, notwithstanding that claim 131 covers statutory subject
matter, the Examiner has raised a question of patent eligibility on the ground
that claim 131 is directed to an abstract idea.
Alice step one — the “directed to” inquiry
According to Alice step one, “[w]e must first determine whether the
claims at issue are directed to a patent-ineligible concept.” Alice, 573 U.S.
at 218 (emphasis added); 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.”). The Revised Guidance lays out
three types of abstract ideas: mathematical concepts, methods of organizing
human activity, and mental processes. 2019 Revised Guidance, 84 Fed.
Reg. at 52. See also Digitech Image Techs., LLC v. Elecs. for Imaging,
Inc., 758 F.3d 1344, 1350 (Fed. Cir. 2014) (holding that claims to a
“process of organizing information through mathematical correlations”
are directed to an abstract idea); Intellectual Ventures LLC v. Symantec
Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (“[W]ith the exception of
generic computer-implemented steps, there is nothing in the claims
themselves that foreclose them from being performed by a human,
mentally or with pen and paper.”).
The Examiner determined that the claims recite limitations
corresponding to a mathematical relationship (Non-Final Act. 5). The
Examiner contends that prescribing a ratio so as to obtain the natural fabric
effect quality for a bleach composition are “directed to” (i.e., recites) an
abstract idea/ mathematical algorithm/mental process (Non-Final Act. 5–7).
The Examiner contends that the method of claim 131, which merely at best
adds mixing the bleach components is the ratio prescribed to obtain the
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desired fabric quality is directed to the abstract idea without significantly
more (Ans. 5).
Appellant de facto contends that the claims do not merely recite an
abstract idea, and do not contain the phrase “selecting a ratio” (Reply Br. 8).
Appellant contends he developed “a new mathematical concept for
expressing a ratio number” which is named “the selected ratio” (id.).
Appellant contends the selected ratio is a limitation “instrumental in
formulating a neat bleach composition with a prescribed quality of fabric
safety” and “is a major advancement over the bleach technology of the prior
art” (Reply Br. 8) which could only improve fabric safety by adding other
ingredients (id.).
Accordingly, there is a dispute over whether the invention, because of
its alleged improvement to the existing state of the art, recites patent eligible
subject matter.
The Abstract Idea6 (Step 2A, Prong One)
Claim 131 recites a method for prescribing the natural fabric effect
quality of a bleach composition. As discussed previously in the analysis of
the §112 rejection, there are no active method steps recited in the claim. At
best, one is selecting a ratio, or determining “the selected ratio value” (e.g.,
based on the Specification’s Table 1) and mixing/making a bleach
composition composed of the two recited bleach components in the
prescribed or selected ratio value (claim 131).

6 This corresponds to Step 2A of the 2019 Revised 101 Guidance. Step 2A
determines “whether a claim is ‘directed to’ a judicial exception,” such as an
abstract idea. 2019 Revised Guidance 53. Step 2A is a two prong inquiry.
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The court has held that abstract ideas include the concepts of
collecting data, analyzing the data, and reporting the results of the collection
and analysis, including when limited to particular content. See, e.g.,
Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340
(Fed. Cir. 2017) (identifying the abstract idea of collecting, displaying, and
manipulating data); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc.,
758 F.3d 1344, 1350 (Fed. Cir. 2014) (claims directed to a “process of
organizing information through mathematical correlations” are directed to an
abstract idea).
Claim 131 does recite the selected ratio value as a specific type of
safety data for a bleach composition, but it does not recite any affirmative
steps. There are no steps; rather the method is akin to making a selection that
can (only) be performed in the human mind (e.g., by deciding how safe to
make a fabric safe bleach or not) and thus the recitations are matters that fall
within the “[M]ental processes” enumerated grouping of abstract ideas, both
as to each claim limitation and the claim as a whole.7 Alternately, mixing

7 This corresponds to Prong One [“Evaluate Whether the Claim Recites a
Judicial Exception”] (b) of Step 2A of the 2019 Revised Guidance. “To
determine whether a claim recites an abstract idea in Prong One, examiners
are now to: . . . (b) determine whether the identified limitation(s) falls within
the subject matter groupings of abstract ideas enumerated in Section 1 of the
[2019 Revised 101 Guidance].” Id. at 54. This case implicates subject
matter grouping “(a)” and “(c)”:
(a) Mathematical concepts—mathematical relationships, mathematical
formulas or equations, mathematical calculations;
(c) Mental processes—concepts performed in the human mind
(including an observation, evaluation, judgment, opinion).
Id. at 52.
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two bleach components is insignificant extra-solution activity. See 2019
Revised Guidance, 84 Fed. Reg. at 55 n.31; see also MPEP § 2106.05(g). Cf.
Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1242 (Fed. Cir. 2016)
(agreeing with the Board that printing and downloading generated menus are
insignificant post-solution activities).
Therefore, we have reviewed the record and are unpersuaded as to
reversible error in the Examiner’s characterization of what claim 131 recites.
Practical Application (Step 2A, Prong Two)
Having concluded that claim 131 recites a judicial exception, i.e., an
abstract idea (Step 2A, Prong One), we next consider whether the claim
recites additional elements that integrate the judicial exception into a
practical application (Step 2A, Prong Two). 8
Here, it is clear from the Specification (including the claim language)
that the claims focus on an abstract idea, and not on any improvement to
technology and/or a technical field. The Specification’s description of the
problem and solution focuses on examples that show that any advance over

8 This corresponds to Prong Two (“If the Claim Recites a Judicial Exception,
Evaluate Whether the Judicial Exception Is Integrated Into a Practical
Application”) of Step 2A of the 2019 Revised 101 Guidance. 2019 Revised
Guidance, 84 Fed. Reg. at 54. “A claim that integrates a judicial exception
into a practical application will apply, rely on, or use 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.” Id. One consideration, implicated here, that is
“indicative that an additional element (or combination of elements) may
have integrated the exception into a practical application” (id. at 55)
(footnote omitted) as if “[a]n additional element reflects an improvement in
the functioning of a computer, or an improvement to other technology or
technical field” (id.).

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the prior art by the claimed invention is in utilizing a table to determine a
ratio of two known fabric bleach components to formulate a bleach with a
desired fabric (e.g., cotton) safety property (Spec. ¶¶ 6, 7, 9, 39, 59, 60,
Table 1). Appellant’s argument that this invention is a “new mathematical
concept for expressing a ratio number” (Reply Br. 8) only underscores that
the claimed subject matter is based on an abstract idea. Merely improving
an abstract idea does not prevent it from still being an abstract idea.
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016) (“[A] claim for a new abstract idea is still an abstract idea.”).
Therefore, after careful review, there is insufficient evidence in the record
before us that the claimed subject matter reflects any improvement in
technology.
Last, the application to a certain field, that is, of fabric safety for a
bleach composition, does not do more than generally link the use of a
judicial exception to a particular technological environment. This does not
render the idea non-abstract, however, since “the prohibition against
patenting abstract ideas ‘cannot be circumvented by attempting to limit the
use of the formula to a particular technological environment’ or [by] adding
‘insignificant post solution activity.’” Bilski, 561 U.S. at 610–12 (quoting
Diehr, 450 U.S. at 191–92). Accordingly, within the meaning of the 2019
Revised Guidance, we find there is no integration into a practical
application.
The Examiner correctly determined that a method for “prescribing the
natural fabric effect quality of a hypochlorite bleach composition” as recited
in claim 131 is a mental step and determining or selecting a ratio indicative
of fabric safety is thus an abstract idea, which is nonstatutory subject matter
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(e.g., Ans. 14 (the Examiner states “‘selecting a ratio’ is certainly a mental
activity, as a selection or decision, if it is conducted by a human, can only
take place in the mind”)).
Therefore, because claim 131 recites a judicial exception and does not
recite additional elements that integrate the judicial exception into a practical
application, the claim is directed to a judicial exception.9
We have considered all the Appellant’s arguments challenging the
Examiner’s determination under step one of the Alice framework and find
them unpersuasive. For the foregoing reasons, the record supports the
Examiner’s determination that claims 131–144 recite an abstract idea (i.e.,
ineligible subject matter) and the claims do not integrate the abstract idea
into a practical application.
Alice step two — Does the Claim Provide an Inventive Concept?10
Step two is “a search for an ‘inventive concept’—i.e., an element or
combination of elements that is ‘sufficient to ensure that the patent in

9 The Federal Circuit has explained that “the ‘directed to’ inquiry applies a
stage-one filter to claims, considered in light of the specification, based on
whether ‘their character as a whole is directed to excluded subject matter.’”
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016)
(quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346
(Fed. Cir. 2015)). It asks whether the focus of the claims is on a specific
improvement in relevant technology or on a process that itself qualifies as an
“abstract idea” for which computers are invoked merely as a tool. See id. at
1335–36.
10 This corresponds to Step 2B of the 2019 Revised Guidance page 56 (“[I]f
a claim has been determined to be directed to a judicial exception under
revised Step 2A, examiners should then evaluate the additional elements
individually and in combination under Step 2B to determine whether they
provide an inventive concept (i.e., whether the additional elements amount
to significantly more than the exception itself).”).
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practice amounts to significantly more than a patent upon the [ineligible
concept] itself.’” Alice, 573 U.S. at 217–18 (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 73 (2012)). As part of this
step, we also 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. 2019 Revised Guidance, 84
Fed. Reg. at 52–56.
In that regard, the Examiner asserts that the step of, at best, mixing
two known bleach components is a well-understood, routine, and
conventional step which does not amount to significantly more than the
abstract idea of the selected ratio value (e.g., Non-Final Act. 5–7). The
Examiner goes on to cite, in the rejections under 35 U.S.C. 102 and 103, the
use of the two named bleach components being used together in a bleach
composition, as shown by, e.g., Scialia (Ans. 7, 8).
We agree with the Examiner.
Consistent with precedential law, we addressed Appellant’s argument
as to purported specific asserted improvements in technology under step one
of the Alice framework. See Ancora Techs., Inc. v. HTC Am. Inc., 908 F.3d
1343, 1347 (Fed. Cir. 2018) (“We have several times held claims to pass
muster under Alice step one when sufficiently focused on such
improvements.”). Such an argument can also challenge a determination
under step two of the Alice framework. See buySAFE, Inc. v. Google, Inc.,
765 F.3d 1350, 1354–55 (Fed. Cir. 2014). “[R]ecent Federal Circuit
jurisprudence has indicated that eligible subject matter can often be
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identified either at the first or the second step of the Alice/Mayo
[framework].” 2019 Revised Guidance at 53.
We are not persuaded that claim 131 presents an element or
combination of elements indicative of a specific asserted improvement in
technological capabilities, thereby rendering the claimed subject matter
sufficient to ensure that the patent in practice amounts to significantly more
than a patent upon using the abstract idea of a selected ratio value algorithm
in order to create various bleach compositions.
We have reviewed the Specification and, as explained above, we can
find no suggestion of any technical improvements associated with the
performance of any of the (passively) recited steps which integrate the
abstract idea into a patent eligible concept. Alice, 573 U.S. at 223
(“[M]ere recitation of a generic computer cannot transform a patent-
ineligible abstract idea into a patent-eligible invention. Stating an
abstract idea while adding the words ‘apply it’ is not enough for patent
eligibility.” (Citation and internal quotation omitted)). Cf. In re TLI
Commc’ns LLC Patent Litig., 823 F.3d 607, 612 (Fed. Cir. 2016) (“Put
differently, the telephone unit itself is merely a conduit for the abstract idea
of classifying an image and storing the image based on its classification”).
For the reasons discussed above, we are unpersuaded that the record
supports interpreting the (at best passive) step(s) recited in the claim as
yielding any improvement in technology.
Looking to the additional elements of the two bleach components of
claim 131, we ask if they are, simply conventional elements/components of a
bleach composition. While “[t]he patent eligibility inquiry may contain
underlying issues of fact,” “[w]hen there is no genuine issue of material fact
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regarding whether the claim element or claimed combination is well-
understood, routine, [and] conventional to a skilled artisan in the relevant
field” the question of patent eligibility taking into account well-understood,
routine and conventional elements can be decided as an issue of law.
Berkheimer v. HP Inc., 881 F.3d 1360, 1365, 1368 (Fed. Cir. 2018) (quoting
Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325
(Fed. Cir. 2016); see also Aatrix Software, Inc. v. Green Shades Software,
Inc., 890 F.3d 1354, 1368 (Fed. Cir. 2018) (“A factual allegation or dispute
should not automatically take the determination out of the court’s hands;
rather, there needs to be justification for why additional evidence must be
considered—the default being a legal determination.”).
The Examiner de facto determined that generically linking the use of a
judicial exception to a particular technological environment or field of use is
insufficient; determining fabric safety indicia of a bleach based on a wide
range of ratios for known components of a bleach composition is likewise
insufficient to qualify as significantly more. The Examiner correctly
determined that there is nothing more in the claim to make its subject matter
“patent eligible” since there is no dispute that the routine step of mixing
hypochlorite bleach and sodium hydroxide is well known, and even this step
is not expressly recited in claim 131 (e.g., Ans. 7).
As demonstrated by the Specification (as well as the applied prior art),
the bleach components recited herein are known bleach components. Cf.
Alice, 573 U.S. at 225. See also Bancorp Servs., L.L.C. v. Sun Life
Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he
use of a computer in an otherwise patent-ineligible process for no more than
its most basic function—making calculations or computations—fails to
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circumvent the prohibition against patenting abstract ideas and mental
processes.”).
Therefore, we find clear support demonstrating that the recited bleach
components are components that are well-understood, routine and
conventional.
On the record before us, Appellant has not shown that the claims on
appeal add a specific limitation beyond the judicial exception that is not
well-understood, routine, and conventional, when the claim limitations are
considered both individually and as an ordered combination. We conclude
that no error has been committed in the determination under Alice step two
that claim 131 does not include an element or combination of elements
circumscribing the patent-ineligible concept so as to transform the concept
into an inventive application.
Accordingly, because we are not persuaded as to reversible error in
the Examiner’s position that representative claim 131, and claims dependent
thereon, are directed to an abstract idea and do not present an “inventive
concept,” we sustain the Examiner’s conclusion that they are directed to
patent-ineligible subject matter for being judicially-excepted from 35 U.S.C.
§ 101.
The Rejections under 35 U.S.C. §§ 102/103
Appellant does not argue any claim separate from the other in any of
the rejections listed as III to V above; Appellant also does not present
arguments specific to any of the three applied references (Appeal Br. 11, 12
(Appellant’s arguments are set out to apply to all three prior art rejections)).
Accordingly, we select independent claim 145 directed to a “bleach
product” with a “natural fabric safety quality . . . in the range of fabric-
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damaging to . . . cotton-safe” that “comprises” a “selected” ratio from 1:30
to 1:1 of hypochlorite to sodium hydroxide, as representative of the subject
matter before us for review on appeal for all three prior art rejections (see,
Claims Appendix page 3, filed Feb. 21, 2020). We decide the appeal based
on the arguments made by Appellant in support of the patentability of claim
145, which are the same for each rejection (Appeal Br. 8, 9; Reply Br. 5, 6).
We have reviewed each of Appellant’s arguments for patentability.
We determine that a preponderance of the evidence supports the Examiner’s
finding that the claimed subject matter of each independent claim is
anticipated, or alternatively obvious, within the meaning of § 102 or § 103 in
view of the applied prior art. Accordingly, we will sustain the Examiner’s
rejections for essentially those reasons expressed in the Answer, including
the Examiner’s Response to Argument section, and we add the following
primarily for emphasis.
In order to anticipate, a reference must identify something falling
within the claimed subject matter with sufficient specificity to constitute a
description thereof within the purview of § 102. In re Schaumann, 572 F.2d
312, 317 (CCPA 1978). It is well established that specific examples of the
claimed subject matter are not necessary to establish anticipation. Rather, to
anticipate, one skilled in the art must be able to “at once envisage” the
claimed subject matter in the prior art disclosure. In re Petering, 301 F.2d
676, 681 (CCPA 1962). It is also well settled that when a claimed product
reasonably appears to be substantially the same as a product disclosed by the
prior art, the burden is on the applicant to prove that the prior art product
does not necessarily or inherently possess characteristics attributed to the
claimed product, and that it is of no moment whether the rejection is based
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on § 102 or § 103 since the burden on the applicant is the same. In re
Spada, 911 F.2d 705, 708 (Fed. Cir. 1990); In re Best, 562 F.2d 1252, 1255
(CCPA 1977).
Appellant has not provided any persuasive reasoning or credible
evidence to refute the Examiner’s determination that the sodium
hypochlorite:sodium hydroxide bleach compositions found in each reference
possess a ratio thereof within the range recited in each independent claim,
and the amount of each component necessarily provided an effective fabric
cleaning composition that was, e.g., fabric safe (Ans. 13–15; e.g., Scialla
col. 8, Examples 4, 5, ll. 25–26 (the compositions “provided improved fabric
safety and/or improved whiteness to fabrics”). See, e.g., Atlas Powder Co.
IRECO, Inc., 190 F.3d 1342, 1345 (Fed. Cir. 1999)(presuming anticipation
based on a substantial overlap between the claimed ranges of ingredients in
an explosive composition and the ranges of the same disclosed in a prior art
reference); In re Ornitz, 351 F.2d 1013, 1016–17 (CCPA 1965) (“Even
assuming arguendo appellant to have discovered that ranges of some
constituents are critical to certain [important] properties, we are not
convinced of novelty in the claimed range of compositions since Payson
[i.e., prior art,] discloses those properties for substantially the same ranges of
composition.”).
Appellant’s arguments that the references fail to teach all the
elements, specifically “the selected ratio”, of the independent claims is
unavailing (Appeal Br. 8; Reply Br. 5).11 Contrary to Appellant’s argument,

11 Appellant urges us to consider the prosecution and claims of US
8,846,597 (e.g., Reply Br. 5, 6); however, we merely note that a bleach
product as recited in claim 145 is not claimed therein, nor is a method as set
out in claim 131.
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the “calculated ratio” derived from each reference may be relied upon in the
rejection of the claims (Appeal Br. 8). Appellant fails to appreciate that one
simply may not rely upon a mental process, or decision (that is, Appellant’s
selected ratio value), to formulate the bleach composition in a claim directed
to the bleach composition product or in a claim to prescribe the natural
fabric effect of a bleach composition. Appellant also fails to fully appreciate
that the claims on appeal are indeed open to additional components (via the
use of “comprising” language), and do not recite a “neat” solution of sodium
hypochlorite with sodium hydroxide (Reply Br. 3 (pointing out the invention
uses selected ratios from Specification Table 1 to formulate a neat bleach
solution)). Limitations not appearing in the claims cannot be relied upon for
patentability. In re Self, 671 F.2d 1344, 1348 (CCPA 1982). The Examiner
has made out a prima facie case, thereby shifting the burden of proof to
Appellant, and Appellant has not met the burden to show that the
compositions of the applied prior art do not inherently satisfy the claimed
invention. Conclusory arguments in a brief cannot take the place of
evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
Assuming arguendo that a case of anticipation has not been met, a
“recognition in the prior art that a property is affected by the variable is
sufficient to find the variable result-effective.” In re Applied Materials, Inc.,
692 F.3d 1289, 1297 (Fed. Cir. 2012). As indicated by the applied prior art,
the amount of sodium hydroxide and sodium hypochlorite are each a result-
effective variable for a fabric cleaning composition, and the prior art
exemplifies overlapping ranges for both components (Ans. generally).
Moreover, it is well settled that it would have been obvious for an artisan
with ordinary skill to develop workable or even optimum ranges for result-
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effective parameters. In re Boesch, 617 F.2d 272, 276 (CCPA 1980); In re
Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (where the difference
between the claimed invention and the prior art is some range, the applicant
must show that the particular range is critical, generally by showing that the
claimed range achieves unexpected results). Appellant does not rely upon
any evidence of unexpected results.
Accordingly, the Examiner has presented a prima facie case of
unpatentability under either one of § 102 or § 103 of the bleach composition
as recited in claim 145 (or the corresponding method claim 131 and all
dependent claims not separately argued) for all the reasons set forth in the
Non-Final Action mailed Feb. 2, 2017 and Answer.
Accordingly, the Examiner’s § 102 and, in the alternative, § 103,
rejections are affirmed with respect to all of the claims on appeal.

In summary:

Claims
Rejected 35 U.S.C. §  Reference(s)/Basis Affirmed Reversed
131–144 112, second paragraph  Indefiniteness 131–144
131–144 101 Eligibility 131–144
131–153 102(b)/103(a) Scialla 131–153
131–135,
137–149,
151–153
102(b)/103(a) Agostini
131–135,
137–149,
151–153

131–135,
137–149,
151–153
102(b)/103(a) Grande
131–135,
137–149,
151–153

Overall
Outcome 131–153

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED