Stacy, E. Webb. et al.

Patent Trials and Appeals Board

Jun 22, 2020

2019003578 (P.T.A.B. Jun. 22, 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.
13/502,120 04/13/2012 E. Webb Stacy APTI0903PPPCPU 7048
15951 7590 06/22/2020
Aptima, Inc.
12 Gill Street, Suite 1400
Attn: Patents/Jay Brooks
Woburn, MA 01801
EXAMINER
HULL, JAMES B
ART UNIT PAPER NUMBER
3715
MAIL DATE DELIVERY MODE
06/22/2020 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 E. WEBB STACY and JOHN COLONNA-ROMANO

Appeal 2019-003578
Application 13/502,120
Technology Center 3700
____________

Before JENNIFER S. BISK, AMEE A. SHAH, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

SHAH, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1–5 and 7–22. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
Aptima, Inc. Appeal Br. 4.
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CLAIMED SUBJECT MATTER
The Appellant’s “invention relates to simulated environments, in
particular to simulation environments that utilize scenarios,” for example,
“[i]mmersive scenarios, such as those found in military exercises and
computer-based games, [that] are often viewed as a sequence of discrete
partially scripted events.” Spec. ¶¶ 5, 7.
Claims 1, 9, 10, and 18 are the independent claims on appeal.
Claims 1 and 10, reproduced below, with bracketed notations and
paragraphing added, are illustrative of the claimed subject matter.
1. A method of defining a scenario of conditions for a computer
based simulator, said method comprising the steps of:
[(a)] an assignment model receiving a plurality of
conditions for at least one objective;
at least one of the plurality of conditions being
represented by at least one constraint;
the at least one constraint comprises a mathematical
expression having at least one variable representing a
plurality of values of the at least one constraint whereby
the at least one of the plurality of conditions can be
represented by the plurality of values of the at least one
constraint;
the mathematical expression implemented in a
computer program to be executed with a processor;
[(b)] the assignment model communicating at least one of
the plurality of conditions to a scheduling model;
[(c)] the scheduling model scheduling, with a processor, at
least one of the plurality of conditions to define the scenario of
conditions for a computer based simulation environment by
satisfying the at least one objective given the at least one
constraint;
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the computer based simulation environment
comprises a plurality of networked computer based
simulators;
whereby the scenario of conditions comprises at
least one of the plurality of conditions for each of the
networked computer based simulators;
[(d)] the scheduling model communicating at least one of
the plurality of conditions to the computer based simulation
environment;
[(e)] receiving an actual value of the at least one variable
of the at least one constraint from one of the plurality of
networked computer based simulators;
whereby the actual value represents an actual
constraint value from a user of one of the plurality of
networked computer based simulators;
[(f)] the scheduling model rescheduling at least one of the
plurality of conditions to define an updated scenario of
conditions for the computer based simulation environment by
satisfying the at least one objective given the at least one
constraint and the actual constraint value; and
whereby the updated scenario of conditions
comprises at least one of the plurality of conditions for
each of the networked computer based simulators.
Appeal Br. 38–39 (Claims App.).

10. A computer based method of monitoring a user on a scenario
of conditions, said method comprising:
[(a)] presenting a scenario of conditions to a user interface
of a computer based simulator;
the scenario of conditions comprising a plurality of
conditions for at least one objective;
at least one of the plurality of conditions being
represented by at least one constraint;
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the at least one constraint comprises a mathematical
expression having at least one variable representing a
plurality of values of the at least one constraint whereby
the at least one of the plurality of conditions can be
represented by the plurality of values of the constraint;
the mathematical expression implemented in a
computer program;
[(b)] monitoring an execution of the user of the at least one
of the plurality of conditions of the user interface of the computer
based simulator;
[(c)] determining, with a processor, at least one actual
constraint value of the at least one of the plurality of conditions
based on the execution of the user; and
[(d)] determining whether the actual constraint value
satisfies the at least one of the plurality of conditions.
Id. at 40–41 (Claims App.)
As explained below, we analyze independent claim 10 separately from
independent claims 1, 9, and 18.

THE REJECTION
Claims 1–5 and 7–22 stand rejected under 35 U.S.C. § 101 as being
directed to a judicial exception without significantly more.

OPINION
35 U.S.C. § 101 Framework
A. Section 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 U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
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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
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 (1853))); 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.”
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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
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 (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.
B. USPTO Section 101 Guidance
In January 2019, after the Final Action was mailed and the Appeal
Brief entered, but before the Answer was mailed and the Reply Brief
entered, 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
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Guidance”).2 “The guidance sets out agency policy with respect to the
USPTO’s interpretation of the subject matter eligibility requirements of
35 U.S.C. § 101 in view of decisions by the Supreme Court and the Federal
Circuit.” Id. at 51. Although “[a]ll USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance,” the guidance
“does not create any right or benefit, substantive or procedural, enforceable
by any party against the USPTO.” Id.; see also October 2019 Update at 1.
The 2019 Revised Guidance, by its terms, applies to all applications, and to
all patents resulting from applications, filed before, on, or after January 7,
2019. Id. at 50.3
Under 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

2 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.pdf).
3 The 2019 Revised Guidance supersedes MPEP § 2106.04(II) and also
supersedes all versions of the USPTO’s “Eligibility Quick Reference Sheet
Identifying Abstract Ideas.” See 2019 Revised Guidance, 84 Fed. Reg. at 51
(“Eligibility-related guidance issued prior to the Ninth Edition, R-08.2017,
of the MPEP (published Jan. 2018) should not be relied upon.”).
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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 additional elements, individually or in combination,
provide an inventive concept. Id. Among the considerations in determining
whether the additional elements, individually or in combination, amount to
significantly more than the exception itself, we look to whether they add a
specific limitation beyond the judicial exception that is not “well-
understood, routine, conventional” in the field or simply append well-
understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception. Id.
at 56.
Claims 1–5, 7–9, and 18–22
Step One of the Mayo/Alice Framework
Under the first step of the Mayo/Alice framework and steps 1 and 2A
of USPTO guidance, the Examiner determines that independent claim 1 is
directed to a method, one of the statutory categories, reciting
an abstract idea comprising: receiving a plurality of conditions
. . . ; scheduling . . . at least one of the plurality of conditions to
define scenarios of conditions for a simulation environment . . . ;

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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communicating at least one of the plurality of conditions to the
simulation environment; . . . receiving an actual value of the at
least one variable of the at least one constraint . . . ; [and]
rescheduling at least one of the plurality of conditions to define
an updated scenario of conditions.
Final Act. 2–3. The Examiner characterizes the claimed concept as an
abstract idea similar to a “process of organizing human activity found to be
abstract in Alice, as it is capable of being performed by human analog (i.e.,
by mental steps and/or pen and paper),” as well an abstract idea similar to
“collecting information, analyzing it, and displaying certain results of the
collection and analysis determined to be abstract in Electric Power Group[,
LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016)],” and an abstract idea
similar to “obtaining and comparing intangible data determined to be
abstract in CyberSource [Corp. v. Retail Decisions, Inc., 654 F.3d 1366
(Fed. Cir. 2011)].” Id. at 3. The Examiner further finds that the limitation
recited in limitation (a) of at least one of the plurality of conditions being
represented by at least one constraint, that comprises a mathematical
expression having at least one variable representing a plurality of values of
the at least one constraint, and represented by the plurality of values of the at
least one constraint “is an abstract idea similar to the concepts that have been
identified as abstract by the courts, such as organizing information through
mathematical correlations in Digitech [Image Tech., LLC v. Electronics for
Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014)] or data recognition and
storage in Content Extraction [and Transmission LLC v. Wells Fargo Bank,
Nat’l Ass’n, 776 F.3d 1343 (Fed. Cir. 2014)].” Id. Applying the 2019
Revised Guidance Step 2A, Prong One (84 Fed. Reg. at 52–54), the
Examiner determines that the claim’s limitations recite abstract ideas falling
within each of the enumerated categories, i.e., a mental process, a method of
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organizing human activities of “of managing interactions between people in
the area of scheduling based on rules or instructions,” and a mathematical
concept. Ans. 7.
The Examiner also determines that the limitations, alone or in
combination, do not improve “the functioning of a computer or improve[]
any other technology.” Final Act. 4. Applying the 2019 Revised Guidance,
the Examiner determines under Step 2A, Prong Two (84 Fed. Reg. at 55)
that claim 1 “do[es] not integrate the judicial exception into a practical
application.” Ans. 8 (emphases omitted). Specifically, the Examiner
determines that the “additional elements, including a processor for
performing the recited steps in a computer environment (e.g., models), and
including networked computer based simulators . . . are recited at a high
level of generality,” and that the “generic computer limitations are no more
than mere instructions to apply the exception using generic computer
components.” Id. The Examiner further determines that “[t]he claim as a
whole merely describes how to apply the concept of defining a scenario of
conditions in a computer environment, but there is no apparent improvement
to the underlying functionality of the generic computer, as the steps are
recited in a result-based manner” and the elements “generally link[] the use
of the judicial exception to a particular technological environment, i.e.,
computer based simulation environment.” Id. The Examiner also
determines that “[i]n contrast to Enfish[, LLC v. Microsoft Corp., 822 F.3d
1327 (Fed. Cir. 2016))], the claim is focused on the abstract idea, not the
functionality of the computer system.” Final Act. 3.
The Appellant contends that “claim [1] is directed to defining a
scenario of conditions for a computer based simulation environment”
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(Appeal Br. 16) that is not a method of organizing human activity or a
mental process (see id. at 15–16). The Appellant contends that “claim 1 is
directed to a technical solution that (i) improves computer based simulators
like those claims found eligible in Enfish and (ii) performs a distinct process
to automate a task similar to the patent-eligible subject matter of McRO.”
Id. at 17 (citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir.
2016) and McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299
(Fed. Cir. 2016)). Under the 2019 Revised Guidance, the Appellant
contends (see id; Reply Br. 2–4) that under Step 2A, Prong One, claim 1
does not recite an abstract idea, and under Prong Two, the elements of the
claim integrate the abstract idea into a practical application because the
combination of the elements “reflects an improvement in the functioning of
a computer, or an improvement to other technology or technical field” (84
Fed. Reg. at 55).
After careful review of the record before us, we do not sustain the
rejection of claims 1–5, 7–9, and 18–22, for the reasons provided below.
The Specification provides for “SYSTEMS AND METHODS TO
DEFINE AND MONITOR A SCENARIO OF CONDITIONS.” Spec.,
Title. In the “BACKGROUND OF THE INVENTION” section, the
Specification states the “invention relates to simulated environments, in
particular to simulation environments that utilize scenarios.” Id. ¶ 5.
Although the Specification “focuses on methods and systems that define and
monitor educational and training scenarios, the systems and methods
disclosed herein have wide applicability,” such as “project planning or
task/resource allocation as well as any educational system such a specifically
programmed computer based learning system.” Id. ¶ 42.
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The Specification discusses that “[i]mmersive scenarios, such as those
found in military exercises and computer-based games, are often viewed as a
sequence of discrete partially scripted events.” Id. ¶ 7. In military exercises,
these scripted events “may be found in a planning document called the
Master Scenario Events List (MSEL),” with each scripted MSEL involving
“specific conditions and actions by specific live, virtual, or constructive
entities,” . . . the conditions and actions tak[ing] place at specific virtual
locations at specific scenario times.” Id. “Computer-based games are
scripted similarly.” Id. The Specification discusses that although known
scenario definition languages are “designed to provide high fidelity detail,”
they “generally fail to define clearly the linkages between scenario events
and training objectives.” Id. ¶ 8; see also id. ¶ 43. Further, “[i]n the
conventional scenario, circumstances can often make it impossible for the
actual sequence of events to match the planned sequence of events.” Id.
¶ 45. “The challenge of scheduling the training objective instances is that
many of them are dependent on each other. So, a brute force approach is to
just try all combinations of values for each of potential time value. This is
computationally difficult.” Id. ¶ 71.
Thus, the invention “determine[s] and monitor[s] a scenario of
conditions to provide a way to view scenarios comprising a partially ordered
collection of partially specified conditions and actions by relaxing these
scenario conditions (when possible) in order to gain flexibility in
sequencing, scheduling, positioning, monitoring and replaying scenario
events or conditions.” Id. ¶ 10; see also id. ¶ 43. The invention’s scenarios
“provide wider latitude for accommodating the unexpected,” such that “[i]f
unexpected events make it impossible to meet the MSEL-based
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requirements, there is still a chance that the [invention’s] . . . requirements
can be met, because they are considerably less demanding although still
pedagogically rigorous.” Id. ¶ 45. The invention’s “approach differs from
earlier work in constraint programming in that it is focused on attempting to
schedule conditions that can optimize a set of events such as working on
training objectives or advancing the plot line, and not on maximizing the
throughput of a system, as would be the case for job-shop or workflow
applications.” Id. ¶ 47. As such, with the invention’s approach,
it is possible to address a variety of goals such as minimizing the
length of the scenario, maximizing the number of training
objectives, maximizing a certain number of conditions required
for each event, maximizing the total value of all events given a
value for each event, and a large number of other sensible goals.
Id. The claimed method further “allows trainers to create training objective
focused scenarios more quickly than conventional methods.” Id. ¶ 48.
Consistent with this disclosure, claim 1 recites “[a] method of
defining a scenario of conditions for a computer based simulator.” Appeal
Br. 38 (Claims App.). We consider claim 1 as a whole5 giving it the
broadest reasonable construction6 as one of ordinary skill in the art would
have interpreted it in light of the Specification7 at the time of filing. The
method of claim 1 comprises the steps of: receiving information, i.e.,

5 “In determining the eligibility of respondents’ claimed process for patent
protection under § 101, their claims must be considered as a whole.” Diehr,
450 U.S. at 188.
6 2019 Revised 101 Guidance, page 52, footnote 14 (“If a claim, under its
broadest reasonable interpretation . . .”) (emphasis added).
7 “First, it is always important to look at the actual language of the claims.
. . . Second, in considering the roles played by individual limitations, it is
important to read the claims ‘in light of the specification.’” Smart Sys.
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[(a)] an assignment model receiving a plurality of
conditions for at least one objective;
at least one of the plurality of conditions being
represented by at least one constraint;
the at least one constraint comprises a mathematical
expression having at least one variable representing a
plurality of values of the at least one constraint whereby
the at least one of the plurality of conditions can be
represented by the plurality of values of the at least one
constraint;
the mathematical expression implemented in a
computer program to be executed with a processor; [and]
[(e)] receiving an actual value of the at least one
variable of the at least one constraint from one of the
plurality of networked computer based simulators;
whereby the actual value represents an actual
constraint value from a user of one of the plurality of
networked computer based simulators;
communicating information, i.e.,
[(b)] the assignment model communicating at least
one of the plurality of conditions to a scheduling model;
[and]
[(d)] the scheduling model communicating at least
one of the plurality of conditions to the computer based
simulation environment;
and scheduling and rescheduling conditions, i.e.,
[(c)] the scheduling model scheduling, with a
processor, at least one of the plurality of conditions to
define the scenario of conditions for a computer based
simulation environment by satisfying the at least one
objective given the at least one constraint;

Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364, 1387 (Fed.
Cir. 2017) (J. Linn, dissenting in part and concurring in part), citing Enfish,
822 F.3d at 1335, among others.
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the computer based simulation environment
comprises a plurality of networked computer based
simulators;
whereby the scenario of conditions comprises at
least one of the plurality of conditions for each of the
networked computer based simulators; [and]
[(f)] the scheduling model rescheduling at least one
of the plurality of conditions to define an updated scenario
of conditions for the computer based simulation
environment by satisfying the at least one objective given
the at least one constraint and the actual constraint value;
and
whereby the updated scenario of conditions
comprises at least one of the plurality of conditions for
each of the networked computer based simulators.
The Specification discusses that the claim uses mathematical
expressions “to model aspects of scenarios and conditions” so that “tools
such as constraint programming can be used as a means to automatically
define the scenarios . . . [and] to monitor, manage and optimize the progress
of a user through the training scenario.” Spec. ¶ 46. Scheduling and
rescheduling conditions are described in the Specification as “‘fit[ting]’
training objectives into either the scenario as it is being planned or into a
training exercise as it is being conducted.” Id. ¶ 66. This is done by feeding
all of the training objective conditions to a mathematical constraint
programming application that satisfies or optimizes the conditions by
“intelligently pick[ing] some of the values for the [training objective] slots
and then us[ing] those values to limit the choices for the values of the other
slots (based on the defined conditions or constraints).” Id. ¶ 72. The
applications “implement a type of constraint-based local search, in which an
initial solution is found, and then a local search is performed for
modifications that will be more optimal.” Id. ¶ 73. The Specification
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describes the scheduling and rescheduling approach in Figure 9 and at
paragraphs 73 through 79 as generating clusters, generating feasible training
objective list, and generating a schedule. Generating a schedule is
performed by an algorithm taking into account source information, resource
constraints, priority of objectives, and duration of the objective. Id. ¶ 78.
When considered collectively and under the broadest reasonable
interpretation, the limitations of claim 1 recite a method for modeling and
defining a scenario of conditions implemented in a computer based
simulation environment. The question is whether this claimed method is an
abstract idea. In our analysis, we are mindful to not parse the claim. See
October 2019 Update 2. Thus, although the claim recites the use of a
mathematical expression, i.e., a mathematical constraint, the method of
modeling and defining a scenario of conditions is not simply reciting a
mathematical concept, reducing the scenario to a mathematical formula, or
organizing information through mathematical correlations, but is using a
mathematical concept in the process. See Diehr, 450 U.S. at 187 and
October 2019 Update 3; cf. Bilski, 561 U.S. at 611 (reducing the concept of
hedging to mathematical principles is an abstract idea); Flook, 437 U.S.
at 594 (discovering a mathematical formula is patent-ineligible); and
Digitech, 758 F.3d at 1350–51 (claim of generating and combining data that
does not require input from a physical device is patent-ineligible). Similarly,
although the uses of the invention encompass training exercises and games,
the claim does not “manage personal behavior or relationships of
interactions between people” by providing set of rules or series of
instructions for the exercise or game, nor does it recite a fundamental
activity humans have been performing. Cf. In re Smith, 815 F.3d 816, 818
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(Fed. Cir. 2016) (rules for conducting a wagering game is an abstract idea)
and Voter Verified, Inc. v. Election Sys. & Software LLC, 887 F.3d 1376,
1385 (Fed. Cir. 2018).
The Examiner determines that the claim recites the abstract idea of a
mental process because “nothing in the claimed elements preclude the steps
or tasks from practically being performed in the mind.” Ans. 7; see also
Final Act. 3 (citing Electric Power Group and CyberSource). However,
when looking at the claim in its entirety, we do not readily see, and the
Examiner has not adequately explained, how the claim recites “the user
manually defining a scenario of conditions” (Ans. 7), and how the particular
steps of scheduling and rescheduling could “practically be[] performed in
the mind” (id.) such that they comprise a mental process. See Reply Br. 5–6
(arguing “the claim canno[t] be performed practically in the human mind.”).
Although the Specification states “[f]or any one training objective for
any one trainee, it is often the case that bringing about the required
conditions (that is, satisfying the constraints) is easy even without
automation” (Spec. ¶ 71), the Specification distinguishes the claimed
invention from those types of processes that can be performed “without
automation,” i.e., mentally. Specifically, the Specification discusses that
“satisfying the constraints that represent the combination of training
objective conditions for all trainees is extremely difficult.” Id. When there
is no solution that satisfies all the constraints, “what is needed is a solution
that satisfies as many high-priority conditions as possible.” Id. Here,
claim 1 recites scheduling a condition to define a scenario comprising at
least one condition for each of a plurality of networked computer based
simulators “by satisfying the at least one objective given the at least one
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constraint” for a plurality of computer based simulators. Thus, the claim
addresses the more difficult problem of satisfying constraints of a
combination of objectives from multiple simulators, i.e., a combination of
training objectives for all trainees. It is not clearly evident that this more
difficult process, with its use of its mathematical constraint, “constraint
programming,” and scheduling and rescheduling, is one that can be
performed mentally or manually. See CardioNet, LLC v. InfoBionic, Inc.,
955 F.3d 1358, 1371 (Fed. Cir. 2020) (“it is difficult to fathom how doctors
mentally or manually used ‘logic to identify the relevance of the variability
[in the beat-to-beat timing] using a non-linear function of a beat-to-beat
interval’ as required by claim 10.”). Thus, it is not apparent that, under the
2019 Revised Guidance Step 2A, Prong One, the claim recites an abstract
idea of a mental process.
However, even assuming arguendo that claim 1 recites the less
difficult process (with one objective and one trainee) that possibly can be
performed mentally, and thus recites an abstract idea, we agree with the
Appellant that the claim is not directed to that abstract idea; rather, its focus
is on a specific means to improve simulation technology, i.e., the claim
integrates the judicial exception into a practical application, as the term is
used in the 2019 Revised Guidance, Step 2A, Prong Two (84 Fed. Reg.
at 54–55).
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., 822 F.3d at 1335 (quoting Internet Patents Corp. v. Active
Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the
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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. Here, it is clear from the
Specification, including the claim language, that claim 1 focuses on a
purported improvement to a technical field.
As discussed above, the Specification makes clear that the invention’s
scenarios address the prior art problem of “computer based simulators . . .
accommodat[ing] multiple conditions of a training scenario in large-scale
computer based simulation environments.” Appeal Br. 17; see also Spec.
¶ 71. The purported solution allows for “wider latitude for accommodating
the unexpected,” such that if unexpected events make it impossible to meet
the MSEL-based requirements for the simulations to occur, the invention’s
requirements may still be met, “because they are considerably less
demanding although still pedagogically rigorous” (Spec. ¶ 45), allowing for
the simulation to occur (see id.) and for a more effective training experience
(id. ¶ 48). More specifically, “[b]y representing the[] types of objective
conditions as mathematical constraints, it is possible to represent the
conditions more flexibly, such as in a mathematical range, that can more
accurately represent methods to meet the objective or to better satisfy a
group of objectives.” Id. ¶ 51. We agree with the Appellant that the
combination of representing conditions as constraints that are mathematical
expressions and scheduling and rescheduling the conditions for the
simulations comprises additional elements that “allow[] the scenario
planning and execution in simulators to be more flexible and more effective
than conventional solutions (see Spec. at least at paras. [0045]-[0048] and
[0071]-[0072]).” Appeal Br. 19.
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We acknowledge that the claimed computer elements of assignment
and scheduling models, a computer program, a processor, and networked
simulators are described in the Specification as generic computer elements
or off-the-shelf products. See Spec. ¶¶ 91–95. However, we agree with the
Appellant (see Appeal Br. 17–19; Reply Br. 5–6) that the claim here is akin
to those of McRO where the court held “[i]t is the incorporation of the
claimed rules, not the use of the computer, that ‘improved [the] existing
technological process’ by allowing the automation of further tasks.” 837
F.3d at 1314 (alteration in original) (quoting Alice, 573 U.S. at 223). Here,
it is similarly the incorporation of the mathematical constraints and the
scheduling and rescheduling based on the constraints that reflect a purported
improvement to the technical field of computer based modeling of scenarios,
even though the claim does not recite a limitation for performing the
scenario simulation.
Accordingly, we conclude that, under the first step of the Mayo/Alice
framework and Step 2A of the 2019 Revised Guidance, claim 1 is not
directed to an abstract idea but to an improvement to the technical field of
computer based modeling of scenarios. We thus do not reach the second
step of the Mayo/Alice framework and Step 2B of the USPTO Guidance.
See McRO, 837 F.3d at 1316; CardioNet, 955 F.3d at 1371.
Thus, we do not sustain the Examiner’s rejection of independent
claim 1 and of claims 2–5, 7, 8, 21, and 22, which depend therefrom.
Independent claims 9 and 18 recite limitations substantially similar to those
of independent claim 1, and for the same reasons we do not sustain the
rejection of claim 1, we also do not sustain the rejection of independent
claims 9 and 18 and of claims 19 and 20, which depend from claim 18.
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Claims 10–16
Failure to Apply the Mayo/Alice Framework
We first address the Appellant’s arguments that the Examiner fails to
make a prima facie case and does not properly apply the “steps” of the
“Mayo Test.” Appeal Br. 32–37; see also Reply Br. 2. We are not
persuaded of Examiner error by this argument.
Here, the Examiner applies the Supreme Court’s two-step framework,
described in Mayo and Alice, and considers Office guidelines (in effect at the
time) in that application. See Final Act. 6–11; Ans. 3–9 (applying the 2019
Revised Guidance). Specifically, the Examiner notifies the Appellant to
what abstract idea the Examiner considers the claims recite (see Final Act. 7;
Ans. 4–7) and why the claims are directed to that abstract idea (see Ans. 8).
The Examiner further considers the claimed elements individually and as an
ordered combination and notifies the Appellant why the claims do not
provide an inventive concept that transforms the abstract idea into a patent-
eligible invention. See Final Act. 7–9; Ans. 8–9. Thus, the Examiner has
notified the Appellant of the reasons for the rejection in a sufficiently
articulate and informative manner as to meet the notice requirement of
35 U.S.C. § 132. See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011).
Step One of the Mayo/Alice Framework
Under the first step of the Mayo/Alice framework and steps 1 and 2A
of USTPO guidance, the Examiner determines that independent claim 10 is
directed to a method, one of the statutory categories, reciting
an abstract idea comprising: presenting a scenario of conditions
to a user interface of a simulator . . . ; monitoring an execution of
the user of the at least one of the plurality of conditions . . . ;
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determining at least one actual constraint value of the at least one
of the plurality of conditions based on the execution of the user
. . . ; and determining whether the actual constraint value satisfies
the at least one of the plurality of conditions.
Final Act. 7. The Examiner makes the same determinations regarding
USTPO guidance step 2A for claim 10 as for claim 1. See id. Specifically
applying the 2019 Revised Guidance Step 2A, Prong One (84 Fed. Reg.
at 52–54), the Examiner determines that the claim “recites limitations that
are akin to organizing human activity, mental processes and mathematical
concepts,” i.e., that the claim’s limitations recite abstract ideas falling within
each of the enumerated categories. Ans. 24.
The Examiner also determines that claim 10’s “recited computer
system may include a general purpose computer (see Applicant’s
specification at paragraph 0093 describing computer system as general
purpose).” Final Act. 8. Further, the limitations, alone or in combination,
do not
provide improvement to another technology, technical field;
improvements to the functioning to the computer itself; apply the
judicial exception with, or by use of, a particular machine; effect
a transformation or reduction of a particular article to a different
state or thing; a specific limitation other than what is well-
understood, routine and conventional in the field, or add
unconventional steps that confine the claim to a particular useful
application; and other meaningful limitations beyond generally
linking the use of the judicial exception to a particular
technological environment.
Id. Applying the 2019 Revised Guidance, the Examiner determines under
Step 2A, Prong Two (84 Fed. Reg. at 55) that claim 1 “do[es] not integrate
the judicial exception into a practical application.” Ans. 8 (emphases
omitted).
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The Appellant contends that “claim 10 is directed to monitoring a user
of a computer based simulator which is neither an interpersonal or an
intrapersonal activity [and] . . . submits that the methods address the human
operation of machines which is specifically excluded from ‘organizing
human activity.’” Appeal Br. 31. The Appellant contends
claim 10 includes a “concrete” embodiment in that the claim
recites an embodiment of presenting conditions to a user
interface and monitoring a user on a scenario of training events
(conditions) in a computer based simulator so that a
determination can be made whether the user’s performance
satisfies the event.
Id. at 17. Under the 2019 Revised Guidance, the Appellant contends that
“when taken as a whole, as similarly argued above regarding claim 1,
claim 10 at least is not ‘capable of being performed by human analog’ and is
not similar to any of the grouping of abstract ideas in the 2019 [Revised
Guidance].” Reply Br. 7.
After careful review of the record before us, we sustain this rejection.
As the Appellant states, “[i]ndependent claim 10 recites a different
embodiment than that of claim 1.” Appeal Br. 30. Unlike claim 1, claim 10
does not recite combining a use of the constraints with scheduling and
rescheduling the conditions for the simulations, which we determined above
that in combination are unlikely capable of being performed mentally, as
claimed in claim 1, and are directed to a purported improvement in the
technical field of simulation. Instead, claim 10 recites a “computer based
method of monitoring a user on a scenario of conditions.” The claimed
method comprises the steps of: displaying information, i.e.,
[(a)] presenting a scenario of conditions to a user
interface of a computer based simulator;
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the scenario of conditions comprising a plurality of
conditions for at least one objective;
at least one of the plurality of conditions being
represented by at least one constraint;
the at least one constraint comprises a
mathematical expression having at least one variable
representing a plurality of values of the at least one
constraint whereby the at least one of the plurality of
conditions can be represented by the plurality of values
of the constraint;
the mathematical expression implemented in a
computer program;
monitoring information, i.e.,
[(b)] monitoring an execution of the user of the at least
one of the plurality of conditions of the user interface of the
computer based simulator; and
and determining information, i.e.,
[(c)] determining, with a processor, at least one actual
constraint value of the at least one of the plurality of conditions
based on the execution of the user; and
[(d)] determining whether the actual constraint value
satisfies the at least one of the plurality of conditions.
Although the preamble states the method is “computer based,” the
claim does not recite any computer component(s) that performs steps (a),
(b), and (d) of presenting, monitoring, and determining whether the value
satisfies a condition. The Specification at paragraph 80 discusses a “need to
monitor progress against planned training objective conditions during the
exercise,” and at paragraph 81 discusses that “monitoring may be integrated
into the software training program.” Figure 10 “shows an example” of the
described monitoring tool that can “identify conditions for emergent training
objectives” to notify the instructor so as to allow them to take action. Spec.
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¶ 82. There are no claimed details on how the constraint value is determined
based on the execution of the user such that it cannot be done mentally.
When considered collectively and under the broadest reasonable
interpretation, the limitations of claim 10 recite a method for monitoring a
user by presenting scenarios to a user, monitoring scenario conditions, and
determining information about the user’s performance, based on the
monitoring.8 Here, it is clear that, consistent with the Examiner’s
characterization, monitoring a user is an abstract idea of a “[c]ertain
method[] of organizing human activity — . . . managing personal behavior
or relationships or interactions between people (including social activities,
teaching, and following rules or instructions)” and a “[m]ental process[] —
[a] concept performed in the human mind (including an observation,
evaluation, judgment, opinion).” 2019 Revised Guidance, 84 Fed. Reg.
at 52.
Our reviewing courts have held similar concepts to be abstract. For
example, the courts have held abstract the concepts of routing information
by sending, directing, monitoring, and accumulating information and of
“monitoring the delivery of real-time information” in Two-Way Media Ltd.
v. Comcast Cable Comm’ns. LLC, 874 F.3d 1329, 1337, 1340 (Fed. Cir.
2017), of detecting events, i.e., monitoring, an electric grid by collecting,
analyzing, and displaying information in Electric Power Grp., 830 F.3d at
1351–54, of monitoring audit log data of user behavior in FairWarning IP,

8 We note that “[a]n abstract idea can generally be described at different
levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240
(Fed. Cir. 2016). The Board’s “slight revision of its abstract idea analysis
does not impact the patentability analysis.” Id. at 1241.
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LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1097 (Fed. Cir. 2016), and of using a
mathematical formula to monitor and adjust alarms in Flook, 437 U.S.
at 594.
The Appellant argues that claim 10, like claim 1, is “not ‘capable of
being performed by human analog.’” Reply Br. 7. However, the
Specification supports the Examiner’s determination that the steps of
claim 10 can be performed by a human “in the mind and/or using pen and
paper” (Ans. 25) in disclosing, for example, that a human trainer or operator
can “monitor performance, give condition satisfaction status and provide
corrective guidance while encountering scenario conditions or events such as
a group of conditions or a series of conditions” (Spec. ¶¶ 10, 44) and that
“the instructor can monitor the runtime environment” (id. ¶ 104). Except for
the processor determining a constraint value, the claim does not require a
computer component to perform the functions of presenting, monitoring, and
determining whether the value satisfies a condition.
Having concluded that claim 10 recites a judicial exception under
2019 Revised Guidance, Step 2A, Prong One, we next consider whether the
claim recites additional elements that integrate the judicial exception into a
practical application. It does not.
We look to whether the claim “appl[ies], rel[ies] on, or use[s] 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,” i.e., “integrates a judicial exception
into a practical application.” 2019 Revised Guidance, 84 Fed. Reg. at 54.
Here, the only additional elements recited in claim 10 beyond the abstract
idea are the “user interface,” “computer program,” “computer based
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simulator,” and “processor” — elements that, as the Examiner observes (see
Final Act. 8; Ans. 8), are described in the Specification as generic computer
and off-the shelf components (e.g. Spec. ¶¶ 91–95).
We find no indication in the Specification, nor does the Appellant
direct us to any indication, that the operations recited in claim 10 require any
specialized computer hardware or other inventive computer components,
i.e., a particular machine, invoke any asserted inventive programming, or
that the claimed invention is implemented using other than generic computer
components to perform generic computer functions. See DDR Holdings,
773 F.3d at 1256 (“[A]fter Alice, there can remain no doubt: recitation of
generic computer limitations does not make an otherwise ineligible claim
patent-eligible.”). We also find no indication in the Specification that the
claimed invention as recited in claim 10 effects a transformation or reduction
of a particular article to a different state or thing.
In contrast to claim 1 where the combination of the use of the
constraints with scheduling and rescheduling the conditions for the
simulations addresses a prior art problem of computer based simulators and
reflects a purported improvement to the technical field of computer based
modeling of scenarios for simulations (see supra), claim 10 does not recite a
solution to a technical problem nor any other improvement to technology or
a technical field. Here, claim 10 presents a scenario of conditions, monitors
an execution, and determines a value and whether the value satisfies a
condition, which, unlike the use of constraints in scheduling and
rescheduling to define scenarios in claim 1, are not tied to achieving any
purported solution.
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Here, the “focus” of claim 10 is not “on the specific asserted
improvement” (Enfish, 822 F.3d at 1335) to the technical field of modeling
of scenarios, but rather on using the components as tools to implement the
abstract idea of monitoring a user in the particular field of computer based
simulations. See Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d
1253, 1259 (Fed. Cir. 2016) (“The Supreme Court and [the Federal Circuit]
have repeatedly made clear that merely limiting the field of use of the
abstract idea to a particular existing technological environment does not
render the claims any less abstract.”). The computer components operate in
their ordinary manners to present information, implement a mathematical
expression, and determine a constraint value.
The Appellant contends that “independent claim 10 recites a concrete
and useful result” in including “a ‘concrete’ embodiment in that the claim
recites an embodiment of presenting conditions to a user interface and
monitoring a user on a scenario of training events (conditions) in a computer
based simulator so that a determination can be made whether the user's
performance satisfies the event.” Appeal Br. 31. However, these elements,
i.e., presenting conditions, monitoring a user, and making determinations,
are elements that are part of the abstract idea. Any improvement in these
limitations lies in the abstract idea itself, i.e., to monitoring a user, and not to
any technological improvement or to a purported improvement to the
technical field of modeling for simulation, in contrast to claim 1.
Thus, we are not persuaded of error in the Examiner’s determination
that claim 10 is directed to an abstract idea.
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Step Two of the Mayo/Alice Framework
Under the second step in the Alice framework and USTPO guidance
Step 2B, we find supported the Examiner’s determination that claim 10’s
limitations, taken individually or as an ordered combination, do not amount
to significantly more than the judicial exception. See Final Act. 8–9;
Ans. 8–9.
As discussed above, there is no improvement to the claimed
computing elements of a user interface, computer program, computer based
simulator, and processor system, or any purported improvement to the
technical field of modeling of scenarios for simulation. As also discussed
above, the Specification indisputably shows the claimed computing system
was conventional at the time of filing. See supra; Spec. ¶¶ 90–95. The
Appellant provides no argument, reasoning, or evidence to the contrary.
Accordingly, the evidence supports the Examiner’s position that, beyond the
judicial exception, claim 10 recites no more than well-understood, routine,
or conventional features.
The Appellant also does not offer additional reasoning or argument
why claim 10 provides an inventive concept or “[a]dds a specific limitation
or combination of limitations that [is] not well-understood, routine,
conventional activity in the field, which is indicative that an inventive
concept may be present.” 2019 Revised Guidance, 84 Fed. Reg. at 56. The
claimed off-the-shelf computer program and generic processor operate in
their ordinary and conventional capacities to perform the well-understood,
routine, and conventional functions of implementing a mathematical
expression and determining a constraint value. See Spec. ¶¶ 90–95
(describing that the method can be performed with generic computer
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elements); Electric Power, 830 F.3d at 1354–55 (generically recited
gathering, sending, monitoring, analyzing, selecting, and presenting
information did not transform the abstract process into a patent-eligible
invention); Two-Way Media, 874 F.3d at 1339 (processing, routing, and
controlling data, and monitoring the reception of data did not transform the
abstract idea into something more).
Thus, we are not persuaded of error in the Examiner’s determination
that the limitations of claim 10 do not transform the claim into significantly
more than the abstract idea.
We therefore sustain the Examiner’s rejection under 35 U.S.C. § 101
of independent claim 10 and of dependent claims 11–16, for which the
Appellant provides no separate argument.
Claim 17
The Examiner rejects claim 17 for the same reasons as for claim 10,
from which claim 17 ultimately depends. See Final Act. 8. The Examiner
determines that claim 17
only provide[s] more detailed limitations of the abstract idea
identified above (i.e., further define[s] . . . the scenario of
conditions is changed by optimizing a plurality of constraints
using constraint programming; the at least one objective
comprises at least one training objective; and the plurality of
conditions comprises one condition selected from the group
consisting of: a length of the scenario of conditions, and a
quantity of the plurality of conditions), which do not make the
abstract idea any less abstract.
Id. at 9. Additionally, the Examiner determines that “these elements do not
offer meaningful limitations beyond generally linking the identified abstract
idea(s) to a particular technological environment, that is, via computers.” Id.
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Viewing the elements as an ordered combination, the Examiner determines
that they “add[] nothing that is not already present when looking at the
limitations individually. While [claim 17] . . . may have narrower scope
than the representative claim, [it does not] . . . contain[] an ‘inventive
concept’ that transforms the corresponding claim into a patent eligible
application of the otherwise ineligible abstract idea.” Id. In the Answer, the
Examiner elaborates further and asserts that “constraint programming is
recited at a high level of generality. Furthermore, changing the scenario of
conditions according to the parameters claimed is an activity that would be
reasonable and practical to be performed by one human observing another
and as a mental process by a human thinking.” Ans. 26.
Claim 17 requires that the presented scenario of conditions is changed
automatically based on the actual condition by optimizing constraints using
constraint programming, and further narrows the type of objective to a
training objective and the type of condition to a length of the scenario of
conditions and a quantity of the plurality of conditions. Appeal Br. 42
(Claims App.).
The Appellant argues that the Examiner’s “rejection shows no
evidence of a meaningful consideration of the additional limitations
individually or in combination.” Appeal Br. 31. We disagree, as the
Examiner considers claim 17 with claim 10 and provides adequate analysis.
Further, the Appellant does not provide specific argument regarding how or
why the additional limitations would change the Examiner’s determinations.
The Appellant further argues that “like the claims of McRO, the
incorporation of specific details for the conditions of the scenario further
removes the recited solution from a generic computer performing generic
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computer based functions.” Id. at 32. However, in McRO, the claims were
directed to a specific improvement in computer animation and used rules to
automate a subjective task of humans to create a sequence of synchronized,
animated characters. See McRO, 837 F.3d at 1314–15. Unlike Flook, Bilski,
and Alice, it was not the use of the computer, but the incorporation of these
specific rules that improved an existing technological process. Id. at 1314.
Here, unlike with claim 1, the Appellant does not assert or provide reasoning
how claim 17 recites a purported improvement in the technical or
technological aspects of presenting or optimizing or to the technical field of
modeling scenarios for simulation. To the extent constraint programming is
performed, the claim does not recite a specific way of constraint
programming, and the Specification discusses that general constraint
programming is a known tool. See Spec. ¶¶ 46, 47. The Appellant also does
not direct our attention to anything in the Specification to indicate that the
invention as recited in claim 17 provides a technical improvement in the
presenting of changing scenarios, monitoring, and determining steps of
claim 17, or that claim 17 provides a purported improvement to a technical
field, similar to the claims in McRO.
We therefore sustain the Examiner’s rejection under 35 U.S.C. § 101
of dependent claim 17.
CONCLUSION
The Examiner’s decision to reject claims 1–5, 7–9, and 18–22 under
35 U.S.C. § 101 is not sustained.
The Examiner’s decision to reject claims 10–17 under 35 U.S.C.
§ 101 is sustained.

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In summary:
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
1–5, 7–22 101 Eligibility 10–17 1–5, 7–9, 18–22

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).

AFFIRMED IN PART