Vasey, Philip E.

Patent Trials and Appeals Board

Sep 30, 2020

10933466 - (D) (P.T.A.B. Sep. 30, 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.
10/933,466 09/03/2004 Philip E. Vasey 760-010 2829
34845 7590 09/30/2020
Anderson Gorecki LLP
One Marina Park Drive
Suite 1410
Boston, MA 02210
EXAMINER
CHOI, YUK TING
ART UNIT PAPER NUMBER
2153
NOTIFICATION DATE DELIVERY MODE
09/30/2020 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):
handerson@andersongorecki.com
jgorecki@andersongorecki.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PHILIP E. VASEY
____________

Appeal 2019-001646
Application 10/933,466
Technology Center 2100
____________

Before CARL W WHITEHEAD JR, DENISE M. POTHIER, and
JEFFREY S. SMITH, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 22–32 and 46–57, which are all of the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Illustrative Claim
22. An apparatus comprising:
at least one computer having a document generation
program stored on non-transitory computer-readable media, the
document generation program configured to process a document
template that comprises:
compulsory content elements;
optional content elements;
rules governing inclusion of optional content elements
based on input information; and
rules governing use of symbol elements based on
evaluation of the rules governing inclusion of optional content
elements, a first rule governing use of a first symbol element
associated uniquely with and applied only to a first optional
content element, and a second rule governing use of the first
symbol element associated uniquely with and applied only to a
second optional content element, wherein the first rule does not
govern the second optional content element, and the second rule
does not govern the first optional content element;
the document generation program comprising:
instructions that evaluate the first rule based on first
inputted information to generate a partially customized
document comprising the compulsory content elements, the first
symbol element, the second rule, and the second symbol element;
and
instructions that subsequently generate a fully customized
document from the partially customized document, without
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reference to the document template, by evaluating the second
rule based on second inputted information.
Prior Art
Nunberg US 5,111,398 May 5, 1992
Filteau US 2002/0188896 Al Dec. 12, 2002
Hing-Lung Lin et al., Automatic Chinese Text Generation Based on
Inference Trees, Proc. Of ROCLING IV 215–236 (1991) ("Lin").
Examiner’s Rejections
Claims 22–32 and 46–57 stand rejected under 35 U.S.C. § 101 as
directed to non-statutory subject matter.
Claims 22–32 and 46–57 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
Claims 22–27, 32, 46–50, and 52–56 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Filteau and Lin.
Claims 28–31, 51, and 57 stand rejected under 35 U.S.C. § 103 as
unpatentable over Filteau, Lin, and Nunberg.
ANALYSIS
Section 101 rejection
The Examiner rejects all of the pending claims under 35 U.S.C. § 101
as patent-ineligible because they are directed to a judicial exception without
significantly more. Final Act. 8–11. Appellant1 argues the claims are
directed to a technical improvement in documents that are generated in
multiple steps, in accordance with different punctuation rules and with
different punctuation symbols. Appeal Br. 23–25.

1 We use the word “Appellant” to refer to “applicants” as defined in 37
C.F.R. § 1.42(a). The Appeal Brief identifies Thomson Reuters Global
Resources Unlimited Company, as the real party in interest. Appeal Br. 2.
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A. Principles of Law
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. The U.S. Supreme Court, however, has interpreted § 101
to include an implicit exception: “[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) (citation omitted).
The Court, in Alice, reiterated the two-part framework previously set
forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc.,
566 U.S. 66, 75–77 (2012), “for distinguishing patents that claim laws of
nature, natural phenomena, and abstract ideas from those that claim patent-
eligible applications of those concepts.” Alice, 573 U.S. at 217. The first
part in the analysis is to “determine whether the claims at issue are directed
to one of those patent-ineligible concepts.” Id. For example, abstract ideas
include, but are not limited to, fundamental economic practices, methods of
organizing human activities, an idea of itself, and mathematical formulas or
relationships. Id. at 218–20. If we conclude that the claims are not directed
to a patent-ineligible concept, they are considered patent eligible under
§ 101 and the inquiry ends. Rapid Litig. Mgmt. Ltd. v. CellzDirect, Inc.,
827 F.3d 1042, 1047 (Fed. Cir. 2016).
If the claims are directed to a patent-ineligible concept, the second
part in the Alice/Mayo analysis is to consider the elements of the claims
“individually and ‘as an ordered combination’” to determine whether there
are additional elements that “‘transform the nature of the claim’ into a
patent-eligible application.” Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S.
at 79, 78). In other words, the second part is to “search for an “‘inventive
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concept’”—i.e., an element or combination of elements that is ‘sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself.’” Id. at 217–18 (brackets in original)
(quoting Mayo, 566 U.S. at 72–73). The prohibition against patenting an
abstract idea “‘cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment’ or adding ‘insignificant
postsolution activity.’” Bilski v. Kappos, 561 U.S. 593, 610–11 (2010)
(internal citation omitted).
The U.S. Patent and Trademark Office (the “Office”) has published
revised guidance on the application of 35 U.S.C. § 101. 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50–57 (Jan. 7,
2019) (“2019 Guidance”). Under the 2019 Guidance, the Office first looks
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); and (2) additional elements that integrate the judicial
exception into a practical application. See 2019 Guidance at 52, 54–55.
Only if a claim (1) recites a judicial exception, and (2) does not
integrate that exception into a practical application, does the Office then
look to whether the claim: (3) adds a specific limitation beyond the judicial
exception that are not “well-understood, routine, conventional” in the field
(see MPEP § 2106.05(d)); or (4) simply appends well-understood, routine,
conventional activities previously known to the industry, specified at a high
level of generality, to the judicial exception. See 2019 Guidance at 56. We
follow this guidance here.
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B. Application of Legal Principles
1. Step 2A of 2019 Guidance
Prong 1: Do the Claims Recite an Abstract Idea
In applying the framework set out in Alice/Mayo, and as the first part
of that analysis, the Examiner finds the claims are directed to the abstract
idea of generating a document by applying punctuation rules to content
elements and punctuation symbols. See Ans. 6–7; Final Act. 8–11.
We evaluate the Examiner’s § 101 rejection by applying the 2019
Guidance, which uses enumerated groupings of abstract ideas that are rooted
in U.S. Supreme Court precedent, as well as Federal Circuit decisions
interpreting that precedent. See 2019 Guidance at 51–52. The 2019
Guidance describes one category of abstract ideas as including
“[m]athematical concepts” including mathematical relationships or
mathematical formulas, “[c]ertain methods of organizing human activity”
including fundamental economic principles or practices, and “[m]ental
processes” including concepts performed in the human mind. Id. at 52.
Claims 22, 46, and 52 are independent. Claim 22 recites an apparatus,
claim 46 recites a method, and claim 52 recites a computer program stored
on computer readable media. We analyze claim 46 as representative. See 37
C.F.R. § 41.37(c)(1)(iv). The claimed steps of “evaluating the first rule
based on first inputted information to generate a partially customized
document comprising the compulsory content elements, the first symbol
element, the second rule, and the second symbol element” and “subsequently
generating a fully customized document from the partially customized
document, without reference to the document template, by evaluating the
second rule based on second inputted information” can be performed in the
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human mind. See 2019 Guidance at 52. For example, a human, using pen
and paper, can evaluate a punctuation rule based on a content elements and a
symbol elements to generate a partially customized document. Thus, under
Prong 1 of Step 2A in accordance with the 2019 Guidance, we conclude the
claims recite the judicial exception of mental processes, and we, therefore,
agree with the Examiner’s conclusions that the claims recite an abstract idea.
Prong 2: Do the Claims Integrate the Abstract
Idea into a Practical Application
In accordance with Prong 2 of Step 2A of the 2019 Guidance, we
evaluate the claims to determine whether they recite additional elements
beyond the abstract idea, and, if so, we evaluate the additional elements to
determine whether they integrate the abstract idea into a practical
application. 2019 Guidance at 54. The 2019 Guidance at page 55 provides
exemplary considerations, including whether an additional element:
• “reflects an improvement in the functioning of a computer, or
an improvement to other technology or technical field”;
• “implements a judicial exception with, or uses a judicial
exception in conjunction with, a particular machine or
manufacture that is integral to the claim”;
• “effects a transformation or reduction of a particular article [or
thing] to a different state or thing”; or
• “applies or uses the judicial exception in some other meaningful
way beyond generally linking the use of the judicial exception
to a particular technological environment.”
The 2019 Guidance also highlights certain examples in which courts
have held that “a judicial exception has not been integrated into a practical
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application,” such as where the claims “merely use[] a computer as a tool to
perform an abstract idea” or the additional element adds “insignificant extra-
solution activity” to the abstract idea. 2019 Guidance at 55 (emphasis
added); see also October 2019 Update at 11–15.
Appellant argues that its claims are not directed to an abstract idea in
view of Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335
(Fed. Cir. 2016). Reply Br. 27–28; App. Br. 24–25. In particular, Appellant
contends that the “claims are undeniably directed to an improvement [of]
enabling the customized document to be generated on a remote computer
that does not have access to the document template.” Reply Br. 28.
However, this “remote computer that does not have access to the document
template” limitation is not recited in the claim, and we find no basis for
reading this limitation into the claim.
We determine that the claims do not include an improvement to
another technology or technical field or an improvement to the functioning
of the computer itself; we also find the claims do not include a
transformation of an article or meaningful limitations beyond generally
linking the use of an abstract idea to a particular technological environment.
As the U.S. Supreme Court has explained, “if a patent’s recitation of a
computer amounts to a mere instruction to ‘implemen[t]’ an abstract idea ‘on
. . . a computer,’ that addition cannot impart patent eligibility.” Alice, 573
U.S. at 223 (quoting Mayo, 566 U.S. at 84) (alterations in original).
Accordingly, in the first part of the Alice/Mayo analysis, we conclude
that the claims are directed to an abstract idea that is not integrated into a
practical application.
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2. Step 2B of 2019 Guidance – Do the Claims Recite Significantly More
Than the Abstract Idea
Regarding second part of the Alice/Mayo analysis, the Examiner finds
the elements of the claims, when considered individually or as an ordered
combination, do not recite significantly more than the abstract idea. Ans. 7–
8. The Examiner finds the generically recited computer components that
implement the method steps do not provide meaningful limitations beyond
linking the abstract idea to a generic computing environment. See id. We
agree with the Examiner. See Alice, 573 U.S. at 217 (quoting Mayo,
566 U.S. at 79, 78) (“we consider the elements of each claim both
individually and ‘as an ordered combination’” to determine whether the
claim includes “significantly more” than the ineligible concept); see also
Bascom Global Internet Servs. v. AT&T Mobility LLC, 827 F.3d 1341, 1350
(Fed. Cir. 2016) (“an inventive concept can be found in the non-
conventional and non-generic arrangement of known, conventional
pieces.”).
Here, the claim elements beyond the abstract idea recite “with at least
one computer having a document generation program stored on non-
transitory computer-readable media, processing a document template that
includes comprises.” These claim elements recite only generic computer
functions and components that are well-understood, routine, and
conventional—that is, data representing rules, content elements, and symbol
elements, and generic computer having a program stored on computer-
readable media; such generic computer data and components, which do not
convey an inventive concept. See Final Act. 6–9. In particular, this
limitation entails a computer having a document generation program stored
on computer-readable media that processes a document template that
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includes content elements, rules, and symbol elements, where processing the
document template comprises evaluating data included in the template and
generating results. But the steps of processing the document template,
namely evaluating and generating, constitute the underlying abstract idea of
mental processes. 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.”); SAP America, 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.”). Appellant is reminded that “the ‘inventive concept’
[under the second part of the Mayo/Alice test] cannot be the abstract idea
itself” and “Berkheimer . . . leave[s] untouched the numerous cases from this
court which have held claims ineligible because the only alleged ‘inventive
concept’ is the abstract idea.” Berkheimer v. HP Inc., 890 F.3d 1369, 1374
(Fed. Cir. 2018) (Moore, J., concurring).
We determine that the functions recited in Appellant’s claims do not
add any meaningful limitations beyond generally linking the abstract idea to
the particular technological environment. Accordingly, we sustain the
Examiner’s rejection of claims 22–32 and 46–57 under 35 U.S.C. § 101 as
patent-ineligible.
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Section 112, first paragraph rejection
Claims 22–32 and 46–57 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
Claims 22, 46, and 52 are independent. Claim 22 recites “subsequently
generate a fully customized document from the partially customized
document, without reference to the document template, by evaluating the
second rule based on second inputted information.” Each of claims 46 and
52 recite a similar limitation. The Examiner finds that this limitation was
not described in Appellant’s Specification as originally filed. Final Act. 11.
The Examiner, citing pages 9, 10, and Figure 5 of Appellant’s Specification,
finds that the Specification only discloses that the document generation
program generates a partially or fully customized document from a template.
Ans. 4–5.
The Specification discloses a process that can generate a partially
customized document. Spec. 9:20–23. The Specification discloses that the
“customized document contains not only the content elements, the inclusion
of which has been determined by the various rules within the template, but
also the rules which have not been evaluated.” Spec. 9:32–35. Appellant
contends that this sentence contains an obvious typographical error, because
a partially customized document, and not a customized document, contains
rules which have not been evaluated. Reply Brief 23, n1. We agree with
Appellant, and read this sentence as the “partially customized document
contains . . . rules which have not been evaluated.”
Appellant contends that the Specification discloses that the partially
customized document includes optional content that was selected by the
evaluated rules, as well as unevaluated rules. Reply Brief 24 (citing Spec.
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9:32–10:2). Appellant contends that features that are common to both the
template and the partially customized document would function in the same
way. Id. at 25. We agree with Appellant. Features such as unevaluated
rules, which are common to both the template and the partially customized
document, would function in the same way, and would allow the process to
generate a fully customized document from the partially customized
document, without referring to the template. Spec. 9:32–10:2, 13:7–10.
The Examiner also finds that “wherein the first rule does not govern
the second optional content element, and the second rule does not govern the
first optional content element,” as claimed, was not described in Appellant’s
Specification as originally filed. Final Act. 11. The Examiner finds that the
Specification discloses rules, including (a) a full stop at the end of the last
clause, (b) the word “and” after the penultimate clause, and (c) that commas
follow all other clauses up to but not including the penultimate clause. Ans.
6. The Examiner finds that the rules govern the use of symbols such as “full
stop,” “and,” and “comma,” but do not indicate that the first rule does not
govern the second optional content element, nor that the second rule does
not govern the first optional content. Id. The Examiner finds that this
limitation is a negative limitation that does not have basis in the original
disclosure. Id. Appellant contends that this limitation is supported in the
Specification at page 11, lines 32–35, and in the Summary of Claimed
Subject Matter. Reply Br. 25.
Negative limitations are adequately supported when the specification
describes a reason to exclude the relevant limitation. Santarus, Inc. v. Par
Pharmaceurtical, Inc., 694 F.3d 1344, 1351 (Fed. Cir. 2012). Here, the rule
for “full stop” cited by the Examiner only applies to the last clause, and does
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not govern any other clause. Similarly, the rule for “and” cited by the
Examiner applies to the penultimate clause, and does not govern any other
clause. The rule for comma cited by the Examiner does not govern the
penultimate clause, nor the last clause. The Specification provides a reason
for such mutually exclusive rules, namely, that such rules provide
grammatically correct punctuation to a fully or partially customized
document. Spec. 5:9–15, 15:20–21.
Further, the claim itself recites “a first rule governing use of a first
symbol element associated uniquely with and applied only to a first optional
content element,” which means that “the first rule does not govern the
second optional content element” as claimed, because the first rule is
“associated uniquely with and applied only to a first optional content
element.” Similarly, the claim recites “a second rule governing use of the
first symbol element associated uniquely with and applied only to a second
optional content element,” which means that the second rule “does not
govern the first optional content element,” because the second rule is
“associated uniquely with and applied only to a second optional content
element.”
We do not sustain the rejection of claims 22–32 and 46–57 under 35
U.S.C. § 112, first paragraph.
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Section 103 rejections
Claims 22–27, 32, 46–50, and 52–56 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Filteau and Lin. Claims 22, 46, and 52 are
independent. Claim 22 recites “evaluate the first rule . . . to generate a
partially customized document comprising the compulsory content elements,
the first symbol element, the second rule, and the second symbol element.”
Each of claims 46 and 52 recites a similar limitation. Appellant contends
that Filteau does not teach the “partially customized document” as claimed.
App. Br. 19–20. The Examiner finds that the system of Filteau generates a
partial diagnostic report having an identified study type configured to
retrieve a study profile associated with diagnostic finding sets containing
text and punctuations written in the text fields. Ans. 10 (citing Filteau ¶¶ 41,
44, 49, 68, 87, 91, Fig. 8A). In particular, the Examiner finds that Figure 8A
of Filteau shows a sample of a partial diagnostic report. Id.
Appellant contends that the sections of Filteau cited by the Examiner
disclose either a document template or a completed report. Reply Br. 20. In
particular, Appellant contends that “there is no ‘partial diagnostic report’
described by Filteau,” because the diagnostic reports “are the ‘fully
customized documents’ generated from the site template . . . using the
diagnostic findings.” Id. Appellant contends that report instance 180, which
is the medical report generated from the templates as described in Paragraph
52, does not include any unevaluated rules, so it cannot be reasonably
interpreted as a partially customized document. Id. at 21.
We agree with Appellant. The sections of Filteau cited by the
Examiner do not disclose a partially customized document. See Ans. 10
(citing Filteau ¶¶ 41, 44, 49, 68, 87, 91, Fig. 8A). Paragraph 41 of Filteau
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discloses that a storage device contains diagnostic findings associated with a
text field, and also contains templates that provide formatting rules to be
applied in all diagnostic reports generated by the report generator. We agree
with Appellant that the diagnostic reports discussed in Paragraph 41 are the
fully customized documents generated from the template, and not partially
customized documents. See Reply Br. 20.
Similarly, the other cited sections disclose either templates or
completed reports. Paragraph 44 discloses a study template that provides
study-specific report-formatting rules to be applied in diagnostic reports
created by the report generator. Paragraph 49 discloses that the study
template includes information identifying the source of images, the type of
study, and a set of diagnostic findings that may be included in a diagnostic
report of that type. Paragraph 68 discloses a reporting profile that may be
associated with diagnostic finding sets. Paragraph 87 discloses that the
system relies on the linguistic skills of a reporting physician to enter a valid
statement with correct punctuation for a diagnostic finding. Paragraph 91
discloses that Figure 8A shows a portion of an exemplary report generated
by the medical report generator.
The Examiner has not persuasively explained how the cited portions
of Filteau (¶¶ 41, 44, 49, 68, 87, 91, and Fig. 8A) teach “evaluate the first
rule . . . to generate a partially customized document comprising the
compulsory content elements, the first symbol element, the second rule, and
the second symbol element” as recited in claim 22. To the contrary, we
agree with Appellant, that Filteau discloses that the rules provided by the
associated templates, including the rules provided by study template 176, are
used to generate the completed report. Reply Br. 21 (citing Filteau ¶ 52).
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The Examiner does not find that Lin teaches “evaluate the first
rule . . . to generate a partially customized document comprising the
compulsory content elements, the first symbol element, the second rule, and
the second symbol element” as recited in claim 22. Even if Filteau and Lin
were combined, the combination as proposed on this record would not have
taught “evaluate the first rule . . . to generate a partially customized
document comprising the compulsory content elements, the first symbol
element, the second rule, and the second symbol element” as recited in
independent claim 22, nor as similarly recited in independent claims 46 and
52.
We do not sustain the rejection of claims 22–27, 32, 46–50, and 52–
56 under 35 U.S.C. § 103.
Claims 28–31, 51, and 57 stand rejected under 35 U.S.C. § 103 as
unpatentable over Filteau, Lin, and Nunberg. The Examiner does not find
that Nurnberg teaches “evaluate the first rule . . . to generate a partially
customized document comprising the compulsory content elements, the first
symbol element, the second rule, and the second symbol element” as recited
in independent claim 22, nor as similarly recited in independent claims 46
and 52.
We do not sustain the rejection of claims 28–31, 51, and 57 under 35
U.S.C. § 103.
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DECISION
The rejection of claims 22–32 and 46–57 under 35 U.S.C. § 101 as
directed to non-statutory subject matter is affirmed.
The rejection of claims 22–32 and 46–57 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement is
reversed.
The rejection of claims 22–27, 32, 46–50, and 52–56 under 35 U.S.C.
§ 103 as unpatentable over Filteau and Lin is reversed.
The rejection of claims 28–31, 51, and 57 under 35 U.S.C. § 103 as
unpatentable over Filteau, Lin, and Nunberg is reversed.
In summary:
Claims
Rejected
35
U.S.C.
§
Reference(s)/
Basis
Affirmed Reversed
22–32, 46–57 101 Eligibility 22–32, 46–57
22–32, 46–57 112 Written Description 22–32,
46–57
22–27, 32,
46–50
103 Filteau, Lin 22–27, 32,
46–50
28–31, 51, 57 103 Filteau, Lin,
Nunberg
28–31, 51,
57
Overall
Outcome
22–32, 46–57

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED