The Boeing Company

Patent Trials and Appeals Board

Jul 7, 2020

2020000515 (P.T.A.B. Jul. 7, 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.
13/768,427 02/15/2013 Thomas E. Sherer B86918 1320US.1 (0052.1) 5374
128836 7590 07/07/2020
WOMBLE BOND DICKINSON (US) LLP/BOEING
Attn: IP Docketing
P.O. Box 7037
Atlanta, GA 30357-0037
EXAMINER
DIVELBISS, MATTHEW H
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
07/07/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipdocketing@wbd-us.com
patentadmin@Boeing.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte THOMAS E. SHERER, DAVID L. GROSE, and
SCOTT D. BUTTON
________________

Appeal 2020-000515
Application 13/768427
Technology Center 3600
________________

Before BRADLEY W. BAUMEISTER, JEREMY J. CURCURI, and
NABEEL U. KHAN, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 8–14 and 22.1 Appeal Br. 3–12. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.
Pursuant to our discretionary authority under 37 C.F.R. § 41.50(b), we
enter a new ground of rejection for claim 8 under 35 U.S.C. § 41.50(b) for
being directed to a judicial exception to patent-eligible subject matter
without reciting significantly more.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies The Boeing Company as the real
party in interest. Appeal Brief filed April 26, 2019 (“Appeal Br.”) 1.
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PROSECUTION HISTORY
This is the second appeal to the Board of claim rejections associated
with the ’427 Application. The Board previously affirmed the Examiner’s
rejection of claims 1–21 under 35 U.S.C. § 101 as being directed to a
judicial exception to patent-eligible subject matter without reciting
significantly more. Ex parte Sherer, 2016-005471 (PTAB Jan. 2, 2018).
The Board also affirmed the obviousness rejections of claims 1–21 over the
prior art, discussed below. Id.
In response to the Board’s Decision, Appellant filed a Request for
Continued Examination pursuant to 37 C.F.R § 1.114 (“RCE”) on
February 28, 2018. The RCE was accompanied by a claim amendment and
associated arguments. Amendment After Final Under 37 C.F.R. § 1.116,
filed Feb. 28, 2018 (“RCE Amendment”). The claim amendment entailed,
inter alia, canceling claims 1–7 and 15–21, as well as amending independent
claim 8. RCE Amendment 2–5.
Based upon the claim amendment and arguments, the Examiner
withdrew the patent-ineligibility rejection under 35 U.S.C. § 101, but
maintained the obviousness rejections under 35 U.S.C. § 103(a). Final
Act. 2–21.2 The current appeal is taken from this rejection. See Appeal Br.
The two pending obviousness rejections are as follows:
Claims 8, 9, 12–14, and 22 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Grose (US 2008/0319719 Al; publ. Dec. 25, 2008),

2 Rather than repeat the Examiner’s positions and Appellant’s arguments in
their entirety, we refer to the above mentioned Appeal Brief and RCE
Amendment, as well as the following documents for their respective details:
the Final Action mailed October 17, 2018 (“Final Act.”); the Examiner’s
Answer mailed September 6, 2019 (“Ans.”); and the Reply Brief filed
October 28, 2019 (“Reply Br.”).
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Bahrami (US 2004/0078777 Al; publ. Apr. 22, 2004), and Pederson
(US 2009/0164933 Al; publ. June 25, 2009). Final Act. 2–17.
Claims 10 and 11 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Grose, Bahrami, Pederson, and Kennedy (US 5,764,543;
issued June 9, 1998). Final Act. 17–21.

CLAIMED SUBJECT MATTER
Appellant describes the present invention as follows:
A method is provided that includes receiving a plan model
for a process including a plurality of tasks, and generating a
layout including a network diagram that expresses the plan
model. The method also includes simulating execution of the
plan model, and dynamically updating the network diagram to
reflect an actual task duration tracked for each task during the
simulation. The network diagram includes along a time-directed
axis, a plurality of task nodes that express respective tasks, with
each task node being expressed as a first multi-dimensional
shape having an outline with a dimension along the axis sized
according to a task duration for a respective task. In the updated
network diagram, then, each task node further includes a fill in
the same first multi-dimensional shape as the respective outline
but with a dimension along the axis sized according to the actual
task duration of the respective task.
Abstract.
Independent claim 8, which is illustrative, reads, in relevant part, as
follows:
8. A method of manufacture that improves the efficiency of
production of aircraft by analyzing a manufacturing process for
the production of the aircraft using machinery, the method
comprising:
executing a computer-implemented process-planning
system to produce a plan for an aircraft development process, the
computer-implemented process-planning system at least:
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constructing the aircraft development process
including a plurality of tasks to produce respective internal
products corresponding to respective components of the
aircraft. . . . ;
constructing a process schedule according to [a]
total-ordered aircraft development process;
constructing a plan model . . . ;
generating a layout including a network diagram
that expresses the plan model . . . ;
simulating execution of the plan model, including
tracking . . .
dynamically updating the network diagram during
the simulation to reflect the actual task duration, wherein
in the updated network diagram, each task node further
includes a fill in the same first multi-dimensional shape as
the respective outline but with a dimension along the axis
sized according to the actual task duration of the respective
task, the network diagram, dynamically updated,
demonstrating a consequence of a task executed out of
sequence;
adjusting the plan based on the network diagram,
dynamically updated, to address the task executed out of
sequence; and
executing at least some of the tasks according to the plan,
as adjusted, the at least some of the tasks being executed by the
tools to assemble parts of the aircraft to form subassemblies of
the aircraft.
STANDARD OF REVIEW
The Board conducts a limited de novo review of the appealed
rejections for error based upon the issues identified by Appellant, and in
light of the arguments and evidence produced thereon. Ex parte Frye,
94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
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THE OBVIOUSNESS REJECTIONS
The Examiner’s Determinations and Appellant’s Contentions
The Examiner finds that Grose teaches establishing a total-order
aircraft development process, generally, but does not explicitly teach
constructing a plan model based on the total-ordered aircraft development
process and the process schedule. Final Act. 2–6. The Examiner relies on
Bahrami for teaching this plan model, simulating execution of the plan
model, and dynamically updating the network diagram to reflect the actual
task durations. Id. at 6–7.
The Examiner finds that Pederson teaches “constructing a process
schedule according to the total-ordered aircraft development process,” and
“dynamically updating the network diagram during the simulation, wherein
in the updated network diagram, each task node further includes a fill in the
same first multi-dimensional shape as the respective outline, but with a
dimension along the axis sized according to the actual task duration of the
respective task.” Id. at 8 (citing Pederson ¶¶ 9, 10, 43, 45, 52, 105). The
Examiner finds that Pederson further teaches, “the network diagram,
dynamically updated, demonstrat[es] a consequence of a task executed out
of sequence;” and “adjusting the plan based on the network diagram,
dynamically updated, to address the task executed out of sequence” Id. at 8–
9 (citing Pederson ¶¶ 9, 10, 43, 45, 88; Figs. 4–6). The Examiner
additionally finds that Pederson teaches “executing at least some of the tasks
according to the plan as adjusted.” Id. 9 (citing Pederson ¶ 2).
In more specific regard to the two claim limitations, “demonstrating a
consequence of a task executed out of sequence” and “adjusting the plan
based on the network diagram, dynamically updated, to address the task
executed out of sequence,” the Examiner reasons,
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[t]he following citation from [sic: to] Pederson is applicable:
Paragraph Numbers [0009], [0010], [0043], and [0045]
and Figs. 4–6 teach the task nodes (bar graphs) include a fill in
the shape of the graph that fills in the direction of time as portions
of the task are completed relative to time as well as task duration
of a task that has been started previous to all inputs (in the prior
art's case ingredients and preparatory steps). Paragraph
Number [0088] teaches the order of execution of the blocks may
be changed, and/or some of the blocks described may be
changed, eliminated, or combined.
Ans. 7 (citing Final Act. 9).
Appellant asserts,
Even assuming, arguendo, that Pederson . . . teaches “the
task nodes (bar graphs) include a fill in the shape of the graph
that fills in the direction of time as portions of the task are
completed relative to time as well as task duration of a task that
has been started previous to all inputs . . . . ,” and “the order of
execution of the blocks may be changed, and/or some of the
blocks described may be changed, eliminated, or combined,” . . .
this does not[,] in fact[,] satisfy the claim. The claim requires
that an updated network diagram demonstrate a consequence of
a task executed out of sequence. Pederson disclosing task nodes
including a fill in any shape and direction does not[,] in fact[,]
. . . at all demonstrate[] a consequence of executing a task out of
sequence. Nor does changing the order of execution of blocks,
or changing, eliminating or combining blocks.
Appeal Br. 6.
Analysis
Pederson is directed to a graphical user interface (GUI) that depicts
real-time updates to the status of multiple chemical processes. Pederson,
Abstract. Pederson’s Figures 4 through 6 “illustrate example GUI screens
that may be implemented to represent the process flow, progress, and status
information of example recipes using the example methods, apparatus, and
systems.” Id. ¶ 14. “FIGS. 8A and 8B depict a flow diagram of example
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methods that may be used to implement the example recipe process graphics
system of FIG. 3 and/or the example apparatus of FIG. 7 to display progress
and/or status information of recipes being executed in a process control
system.” Id. ¶ 16. That is, Figures 8A and 8B depict a method for creating
the GUIs of Figures 4 through 6.
Pederson describes the flow diagrams of Figures 8A and 8B, as
follows:
FIGS. 8A and 8B depict a flow diagram of example
methods that may be used to implement the example recipe
process graphics system 302 of FIG. 3 and/or the example
apparatus 700 of FIG. 7 to display progress and/or status
information of recipes being executed in a process control
system. In some example implementations, the example method
of FIGS. 8A and 8B may be implemented using machine
readable instructions comprising a program for execution by a
processor (e.g., the processor 912 shown in the example
processor system 910 of FIG. 9). The program may be embodied
in software stored on a tangible medium such as a CD-ROM, a
floppy disk, a hard drive, a digital versatile disk (DVD), or a
memory associated with the processor 912 and/or embodied in
firmware and/or dedicated hardware in a well- known manner.
Further, although the example program is described with
reference to the flow diagram illustrated in FIGS. 8A and 8B,
persons of ordinary skill in the art will readily appreciate that
many other methods of implementing the example recipe process
graphics system 302 and the example apparatus 700 may
alternatively be used. For example, the order of execution of the
blocks may be changed, and/or some of the blocks described may
be changed, eliminated, or combined.
Pederson ¶ 88 (emphasis added).
This passage of Pederson indicates that various steps for creating the
process-status GUIs of Figures 4 through 6 may be carried out in different
orders. This passage does not teach or suggest changing the arrangements of
blocks or symbols that are depicted in a GUI display. Nor does this passage
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disclose depicting or demonstrating a consequence of executing out of
sequence, a modeled task that is represented by the GUI.
Accordingly, Appellant has persuaded us of error in the Examiner’s
obviousness rejection of independent claim 8. We, therefore, reverse the
Examiner’s rejection of that claim and of claims 9, 12–14, and 22, which
depend from claim 8.
With respect to the remaining rejection of dependent claims 10
and 11, the Examiner does not rely on Kennedy to cure the deficiency of the
obviousness rejection explained above. Final Act. 17–21 (relying on
Kennedy for teaching “the network diagram further includes one or more
buffer nodes that express respective buffers for respective one or more
chains in which the tasks are arranged”). We, therefore, reverse the
obviousness rejection of claims 10 and 11 for the reasons set forth above in
relation to independent claim 8.
NEW GROUND OF REJECTION
Pursuant to our discretionary authority under 37 C.F.R. § 41.50(b), we
newly reject claim 8 under 35 U.S.C. § 101 for being directed to a judicial
exception to patent-eligible subject matter without reciting significantly
more. We reproduce independent claim 8 below with paragraph designators
added for clarity and with emphasis added to the claim language that recites
an abstract idea:
8. A method of manufacture that improves the efficiency of
production of aircraft by analyzing a manufacturing process for
the production of the aircraft using machinery, the method
comprising:
[(i)] executing a computer-implemented process-planning
system to produce a plan for an aircraft development process,
the computer-implemented process-planning system at least:
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[(a)] constructing the aircraft development process
including a plurality of tasks to produce respective
internal products corresponding to respective components
of the aircraft, the aircraft development process including
coordination of a plurality of resources comprising at
least one of materials, component parts, personnel,
machinery and factory floor space, the plurality of tasks
including tasks executed by tools to assemble parts of the
aircraft to form subassemblies of the aircraft;
[(b)] establishing total-order in the aircraft development
process and thereby establishing a total-ordered aircraft
development process;
[(c)] constructing a process schedule according to the
total-ordered aircraft development process;
[(d)] constructing a plan model based on the total-
ordered aircraft development process and the process
schedule;
[(e)] generating a layout including a network diagram
that expresses the plan model, the network diagram
including along a time-directed axis, a plurality of task
nodes that express respective tasks of the aircraft
development process, each task node being expressed as a
first multi-dimensional shape having an outline with a
dimension along the axis sized according to a task
duration for a respective task;
[(f)] simulating execution of the plan model, including
tracking actual duration of each task during the
simulation; and
[(g)] dynamically updating the network diagram during
the simulation to reflect the actual task duration, wherein
in the updated network diagram, each task node further
includes a fill in the same first multi-dimensional shape as
the respective outline but with a dimension along the axis
sized according to the actual task duration of the
respective task, the network diagram, dynamically
updated, demonstrating a consequence of a task executed
out of sequence;
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[(ii)] adjusting the plan based on the network diagram,
dynamically updated, to address the task executed out of
sequence; and
[(iii)] executing at least some of the tasks according to the plan,
as adjusted, the at least some of the tasks being executed by the
tools to assemble parts of the aircraft to form subassemblies of
the aircraft.
Principles of Law
A. SECTION 101:
Inventions for a “new and useful process, machine, manufacture, or
composition of matter” generally constitute patent-eligible subject 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. 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-step framework, described in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012), and Alice. Alice, 573 U.S. at 217–18 (citing Mayo, 566 U.S. at 75–
77). In accordance with that framework, we first determine what concept
the claim is “directed to.” See Alice, 573 U.S. at 219 (“On their face, the
claims before us are drawn to the concept of intermediated settlement, i.e.,
the use of a third party to mitigate settlement risk.”); 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
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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 water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
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. at 191 (citing
Benson and Flook); see also, 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 (internal quotation marks
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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, the U.S. Patent and Trademark Office (“USPTO”)
published revised guidance on the application of 35 U.S.C. § 101. See
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“2019 Guidance”), updated by USPTO, October 2019
Update: Subject Matter Eligibility (available at https://www.uspto.gov/sites/
default/files/documents/peg_oct_2019_update.pdf) (“October 2019
Guidance Update”); see also October 2019 Patent Eligibility Guidance
Update, 84 Fed. Reg. 55942 (Oct. 18, 2019) (notifying the public of the
availability of the October 2019 Guidance Update). “All USPTO personnel
are, as a matter of internal agency management, expected to follow the
guidance.” 2019 Guidance, 84 Fed. Reg. at 51; see also October 2019
Guidance Update at 1.
Under the 2019 Guidance, we first look to whether the claim recites
the following:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activities such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)).
2019 Guidance, 84 Fed. Reg. at 52–55.
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Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, [and] 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 Guidance, 84 Fed. Reg. at 56.
Analysis
STEP 2A, PRONG 1:
Under step 2A, prong 1, of the 2019 Guidance, we first look to
whether the claim recites any judicial exceptions, including certain
groupings of abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activities such as a fundamental economic practice, or
mental processes). 2019 Guidance, 84 Fed. Reg. at 52–54.
Limitation (i)(a) of claim 8 recites,
constructing the aircraft development process including a
plurality of tasks to produce respective internal products
corresponding to respective components of the aircraft, the
aircraft development process including coordination of a
plurality of resources comprising at least one of materials,
component parts, personnel, machinery and factory floor space,
the plurality of tasks including tasks executed by tools to
assemble parts of the aircraft to form subassemblies of the
aircraft.
In short, limitation (i)(a) recites a step of designing a plan for how to
develop an aircraft. Developing a plan constitutes a mental process that
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entails performing evaluations or judgments in the human mind, possibly
with the aid of pencil or paper. The 2019 Guidance expressly recognizes
mental processes that entail evaluations and judgments as constituting a
patent-ineligible abstract idea. 2019 Guidance, 84 Fed. Reg. at 52.
Furthermore, the “mental processes” judicial exception also includes
concepts that can be performed by a human with a pen and paper as well as
those that can be performed entirely in the mind. See October 2019
Guidance Update at 9 (“A claim that encompasses a human performing the
step(s) mentally with the aid of a pen and paper recites a mental process”)
(emphasis omitted). Accordingly, limitation (i)(a) recites a patent-ineligible
abstract idea.
Limitations (i)(b) through (i)(e) recite,
[(b)] establishing total-order in the aircraft development
process and thereby establishing a total-ordered aircraft
development process;
[(c)] constructing a process schedule according to the total-
ordered aircraft development process;
[(d)] constructing a plan model based on the total-ordered
aircraft development process and the process schedule;
[(e)] generating a layout including a network diagram that
expresses the plan model, the network diagram including along
a time-directed axis, a plurality of task nodes that express
respective tasks of the aircraft development process, each task
node being expressed as a first multi-dimensional shape having
an outline with a dimension along the axis sized according to a
task duration for a respective task;
Like limitation (i) (a), limitations (i) (b) through (i) (e) recite process-
planning steps that entail performing evaluations or judgments in the human
mind, possibly with the aid of pencil or paper. For the reasons set forth in
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relation to limitation (i)(a), then, limitations (i)(b) through (i)(e) recite
patent-ineligible abstract ideas.
Limitation (i)(f) recites, “simulating execution of the plan model,
including tracking actual duration of each task during the simulation.”
A general purpose dictionary defines a simulation as “an imitation or
enactment.” Dictionary.com, available at
https://www.dictionary.com/browse/simulation?s=t. Simulations can be
carried out by human beings imitating the actual process with the aid of
pencil and paper. For example, long before the advent of the Internet,
people developed work-scheduling plans for major projects to help them
visualize and organize the steps of a project by drawing a timeline on one or
more pieces of paper and drawing boxes along the timeline to represent the
duration of individual tasks. Like limitations (i)(a) through (i)(e), then,
limitation (i)(f) recites a process-planning step that entails performing
evaluations or judgments in the human mind, possibly with the aid of pencil
of paper. For the reasons set forth in relation to limitation (i)(a), limitation
(i)(f) recites a patent-ineligible abstract idea.
Limitation (g) recites,
dynamically updating the network diagram during the simulation
to reflect the actual task duration, wherein in the updated network
diagram, each task node further includes a fill in the same first
multi-dimensional shape as the respective outline but with a
dimension along the axis sized according to the actual task
duration of the respective task, the network diagram,
dynamically updated, demonstrating a consequence of a task
executed out of sequence;
The step of simulating execution of a plan model with dynamic
updates, as claimed, is broad enough to read on producing a written
workflow timeline, as described above, and regularly filling in part or all of
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those task boxes on the timeline for which work has commenced so as to
indicate progress towards completion of those tasks. Furthermore, the act of
“demonstrating a consequence of a task executed out of sequence” reads on
printing multiple versions of the workflow timeline with various tasks
positioned on the timeline in different locations (or “out of order”) so as to
compare plans.
Like limitations (i)(a) through (i)(f), then, limitation (i)(g) recites a
process-planning step that entails performing evaluations or judgments in the
human mind, possibly with the aid of pencil or paper. For the reasons set
forth above, limitation (i)(g) recites a patent-ineligible abstract idea.
Limitation (ii) recites, “adjusting the plan based on the network
diagram, dynamically updated, to address the task executed out of
sequence.” Limitation (ii) reads on writing out a new revision of a workflow
model after a task of a partially completed project is executed out of
sequence. For the reasons set forth above, limitation (ii) recites a patent-
ineligible abstract idea.
For these reasons, each of limitations (i)(a) through (i)(g) and
limitation (ii) recites a judicial exception to patent-eligible subject matter
under step 2A, prong 1, of the 2019 Guidance. See RecogniCorp, LLC v.
Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract
idea . . . to another abstract idea . . . does not render the claim non-abstract.”)
STEP 2A, PRONG 2:
Under step 2A, prong 2, of the 2019 Guidance, we next analyze
whether claim 8 recites additional elements that individually or in
combination integrate the judicial exception into a practical application.
2019 Guidance, 84 Fed. Reg. at 53–55. The 2019 Guidance identifies
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considerations indicative of whether an additional element or combination of
elements integrate the judicial exception into a practical application, such as
an additional element reflecting an improvement in the functioning of a
computer or an improvement to other technology or technical field. Id. at
55; MPEP § 2106.05(a).
Beyond the abstract ideas noted above, claim 8 additionally recites
that the “process-planning system to produce a plan for an aircraft
development process,” as effectuated by the abstract ideas of limitations (i)
and (ii) is executed, more specifically, by “a computer-implemented process-
planning system.” Appeal Br. 13 (emphasis added). That is, claim 8 recites
an additional element beyond the abstract idea—“a computer.”
Claim 8 additionally recites in step (iii) an additional element beyond
the abstract idea that entails actually building at least part of the aircraft
according to the revised work schedule: “executing at least some of the
tasks according to the plan, as adjusted, the at least some of the tasks being
executed by the tools to assemble parts of the aircraft to form subassemblies
of the aircraft.”
In the Arguments section associated with Appellant’s RCE
Amendment, Appellant argues, “[t]he claims of the present application are
directed to a method that is limited to a particular practical application, and
do not simply claim an abstract idea.” RCE Amendment 7. Appellant
argues more specifically,
The claims have a practical application of production of
an aircraft, or more specifically the assembly of parts of the
aircraft to form subassemblies of the aircraft, according to a
process plan that is adjusted based on a network diagram,
dynamically updated, to address a task of the plan executed out
of sequence. The claims do specify in particular how the
computer-implemented process-planning system generates the
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network diagram, simulates execution of a plan model, and
dynamically updates the network diagram to demonstrate the
consequence of a task executed out of sequence.
RCE Amendment 7.
This argument is not persuasive. The fact that Appellant’s claims may
recite very specific approaches for improving the work-planning process
does not mean the claims recite improvements to the functioning of a
computer or to any other technology or technical field. See, e.g., Flook, 437
U.S. at 593 (“respondent incorrectly assumes that if a process application
implements a principle in some specific fashion, it automatically falls within
the patentable subject matter of § 101.”).
In fact, specifying that the computer-implemented process-planning
system generates the network diagram, that the claim recites simulating
execution of a plan model, and that the claim recites updating the network
diagram, all pertains to the underlying abstract ideas. That is, Appellant’s
arguments improperly conflate the features of the underlying abstract ideas
with the additional elements. The proper inquiry is whether the additional
elements integrate the abstract idea into a practical application. See BSG
Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (“It has
been clear since Alice that a claimed invention’s use of the ineligible concept
to which it is directed cannot supply the inventive concept that renders the
invention ‘significantly more’ than that ineligible concept.”); 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.”) (emphasis omitted); SAP
Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018) (“What is
needed is an inventive concept in the non-abstract application realm.”).
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Turning to the actual additional elements, the recitation that the
claimed method is executed by “a computer-implemented process-planning
system” simply amounts to mere instructions to implement the abstract idea
on a generic computer, and, therefore, is not sufficient to make the claim
patent eligible. See Alice, 573 U.S. at 226 (determining that the claim
limitations “data processing system,” “communications controller,” and
“data storage unit” were generic computer components that amounted to
mere instructions to implement the abstract idea on a computer);
October 2019 Guidance Update at 11–12 (recitation of generic computer
limitations for implementing the abstract idea “would not be sufficient to
demonstrate integration of a judicial exception into a practical application”).
Appellant further argues,
the claims also include “executing at least some of the tasks . . .
by the tools to assemble parts of the aircraft to form
subassemblies of the aircraft,” which is not a law of nature,
natural phenomena or abstract idea. This is a specific type of
method of manufacture, as opposed to, for example,
manufacturing an aircraft or aircraft component without first
process planning using simulation and a dynamically-updated
network diagram to guide adjustment of the plan for the aircraft
development process. The claim as a whole is not directed
merely to an abstract idea because it includes executing tasks by
tools to assemble parts of the aircraft to form subassemblies of
the aircraft, in a particular manner.
RCE Amendment 7–8. This argument is unpersuasive, as well.
In Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, (Fed. Cir. 2016), our
reviewing court considered the patent eligibility of claims directed to an
information management and synchronous communications system for
generating and transmitting restaurant menus. Id. at 1235. The Apple court
framed the issue as “whether the claims ‘focus on a specific means or
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method that improves the relevant technology’ or are ‘directed to a result or
effect that itself is the abstract idea and merely invoke generic processes and
machinery.’” Id. at 1241 (citing McRO, Inc. v. Bandai Namco Games Am.
Inc., 837 F.3d 1299, 1312 (Fed. Cir. 2016).
The Apple court affirmed the Board’s conclusion that the claims at
issue there were directed to an abstract idea. Apple v. Ameranth, 842 F.3d
at 1241. According to the court,
[Ameranth’s] patents claim systems including menus with
particular features. They do not claim a particular way of
programming or designing the software to create menus that have
these features, but instead merely claim the resulting systems.
Essentially, the claims are directed to certain functionality—
here, the ability to generate menus with certain features.
Alternatively, the claims are not directed to a specific
improvement in the way computers operate.
Id. (citations omitted).
The Apple court further agreed with the Board that printing or
downloading the generated menus constituted insignificant extra-solution
activity even though the “printing limitations are tied to physical, real-world
locations of printers.” Id. at 1242. The Apple court based this
determination, in part, on the fact that Ameranth’s “specifications describe
the hardware elements of the invention as ‘typical’ and the software
programming needed as ‘commonly known.’” Id.
In the present case, Appellant acknowledges that manufacturing
aircraft according to process planning methods was a known activity. See
Spec., Background section. Appellant’s invention, instead, relates to
improving the methods of managing large-scale product development—
improving how to create a scheduling plan:
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The current methods of [manufacturing-project] control using
scheduling can over-constrain the process limiting completion of
tasks. Further, current methods of managing large-scale product
development may be more time consuming and at a greater cost
than desired. Therefore[,] it would be desirable to have a method
and system that takes into account at least some of the [work-
scheduling] issues discussed above, as well as other possible
issues.
Spec. 1:13–18.
Accordingly, claim 8’s final step of actually executing at least some of
the manufacturing tasks in accordance with the revised workflow plan
merely constitutes insignificant post-solution activity of building at least a
portion of an aircraft.
For these reasons, Appellant does not persuade us that claim 8 is
directed to an improvement in the function of a computer or to any other
technology or technical field. MPEP § 2106.05(a). Nor does Appellant
persuasively demonstrate that claim 8 is directed to a particular machine or
transformation, or that claim 8 adds any other meaningful limitations for the
purposes of the analysis under Section 101. MPEP §§ 2106.05(b), (c), (e).
Accordingly, Appellant does not persuade us that claim 8 integrates the
recited abstract ideas into a practical application within the meaning of the
2019 Guidance. See 2019 Guidance, 84 Fed. Reg. at 52–55.
STEP 2B:
Under step 2B of the 2019 Guidance, we next analyze whether
claim 8 adds any specific limitations beyond the judicial exception that,
either alone or as an ordered combination, amount to more than “well-
understood, routine, conventional” activity in the field. 2019 Guidance,
84 Fed. Reg. at 56; MPEP § 2106.05(d).
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As noted above, Appellant acknowledges that it was known how to
perform complex manufacturing projects, such as building aircrafts. Spec.,
Background section. Appellant also acknowledges that it was known to
build aircrafts according to scheduling plans. Spec. 1:13–18. As such,
building aircrafts according to scheduling plans was well-understood,
routine, and conventional. Appellant’s invention relates to improving the
mental planning that is used to undertake the aircraft manufacturing process.
Id.
Furthermore, Appellant acknowledges that the computer used to
implement the process-planning system, as claimed, is well-understood,
routine, and conventional:
Generally, an apparatus of exemplary implementations of
the present disclosure may comprise, include or be embodied in
one or more fixed or portable electronic devices. Examples of
suitable electronic devices include a smartphone, tablet
computer, laptop computer, desktop computer, workstation
computer, server computer or the like. The apparatus may
include one or more of each of a number of components such as,
for example, a processor (e.g., processor unit) connected to a
memory (e.g., storage device).
The processor is generally any piece of hardware that is
capable of processing information such as, for example, data,
computer-readable program code, instructions or the like
(generally “computer programs,” e.g., software, firmware, etc.),
and/or other suitable electronic information. More particularly,
for example, the processor may be configured to execute
computer programs, which may be stored onboard the processor
or otherwise stored in the memory (of the same or another
apparatus). The processor may be a number of processors, a
multi-processor core or some other type of processor, depending
on the particular implementation. Further, the processor may be
implemented using a number of heterogeneous processor
systems in which a main processor is present with one or more
secondary processors on a single chip. As another illustrative
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example, the processor may be a symmetric multi-processor
system containing multiple processors of the same type. In yet
another example, the processor may be embodied as or otherwise
include one or more application-specific integrated circuits
(ASICs), field-programmable gate arrays (FPGAs) or the like.
Thus, although the processor may be capable of executing a
computer program to perform one or more functions, the
processor of various examples may be capable of performing one
or more functions without the aid of a computer program.
Spec. 24:7–28.
For these reasons, we determine that claim 8 does not recite additional
elements that, either individually or as an ordered combination, amount to
significantly more than the judicial exception within the meaning of the
2019 Guidance. 2019 Guidance, 84 Fed. Reg. at 52–55; MPEP
§ 2106.05(d).
CONCLUSION
We newly reject claim 8 under 35 U.S.C. § 101 as being directed to a
judicial exception to patent-eligible subject matter without reciting
significantly more.
Although we decline to reject claims 9–14 and 22 pursuant to our
discretionary authority under 37 C.F.R. § 41.50(b), we emphasize that our
decision does not mean that the remaining claims are necessarily patentable.
Rather, we merely leave the patentability determination of these claims to
the Examiner. See MPEP § 1213.02.

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DECISION SUMMARY
In summary:

FINALITY AND RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the proceeding will be remanded
to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . . .

REVERSE 37 C.F.R. 41.50(b)
Claims
Rejected
35
U.S.C. §
Basis Affirmed Reversed New
Grounds
8, 9, 12–
14, 22
103 Grose,
Bahrami,
Pederson
8, 9, 12–
14, 22

10, 11 103 Grose,
Bahrami,
Pederson,
Kennedy
10, 11
8 101 eligibility 8
Overall
Outcome
8–14, 22 8