VESTAS WIND SYSTEMS A/S

Patent Trials and Appeals Board

Mar 16, 2022

2021000941 (P.T.A.B. Mar. 16, 2022)

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. 15/528,450 05/19/2017 Martin ATZLER VEST/0442USP (089388) 6160 13923 7590 03/16/2022 Patterson & Sheridan, LLP / Vestas 24 Greenway Plaza, Suite 1600 Houston, TX 77046 EXAMINER GAMI, TEJAL ART UNIT PAPER NUMBER 2117 NOTIFICATION DATE DELIVERY MODE 03/16/2022 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): PAIR_eOfficeAction@pattersonsheridan.com PSDocketing@pattersonsheridan.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARTIN ATZLER, THOMAS SCHEEL, and LARS FINN SLOTH LARSEN Appeal 2021-000941 Application 15/528,450 Technology Center 2100 Before CARL W. WHITEHEAD JR., ADAM J. PYONIN, and PHILLIP A. BENNETT, Administrative Patent Judges. BENNETT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3-6, 8-22. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Vestas Wind Systems A/S. Appeal Br. 3. Appeal 2021-000941 Application 15/528,450 2 CLAIMED SUBJECT MATTER The Specification states that “[t]he present invention relates to a method for estimating a wind speed at a position of a wind turbine.” Spec 1, ll. 4-5. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of controlling operation of a wind turbine comprising a rotor carrying a set of wind turbine blades, wherein each wind turbine blade of the set has a variable pitch angle, the method comprising: obtaining a rotational speed of the rotor; obtaining a pitch angle of the wind turbine blades; deriving a blade torsion contribution based on the rotational speed and the pitch angle; calculating an adjusted pitch angle as a sum of the pitch angle and the blade torsion contribution; calculating an estimated wind speed based on the rotational speed and the adjusted pitch angle, wherein calculating the estimated wind speed comprises: calculating an estimated power output of the wind turbine for the estimated wind speed; comparing the estimated power output to a measured power output of the wind turbine; and determining, based on the comparison, whether to update the estimated wind speed; and controlling, based on the estimated wind speed, a control system of the wind turbine. Appeal Br. 18 (Claims Appendix). REJECTIONS Claims 1, 3-6, 8-22 stand rejected under 35 U.S.C. § 101 as being directed to ineligible subject matter. Final Act. 2-5. Appeal 2021-000941 Application 15/528,450 3 Claims 1, 3-6, 8-22 stand rejected under 35 U.S.C. § 102(a)(2) as being anticipated by Koerber. Final Act. 5-15. REJECTION UNDER 35 U.S.C. § 101 Standard for Patent Eligibility In issues involving subject matter eligibility, our inquiry focuses on whether the claims satisfy the two-step test set forth by the Supreme Court in Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014). The Court instructs us to “first determine whether the claims at issue are directed to a patent- ineligible concept,” Id. at 218, and, in this case, the inquiry centers on whether the claims are directed to an abstract idea. If the initial threshold is met, we then move to the second step, in which we “consider the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Id. at 217-18 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)). The Court describes the second step as a search for “an ‘“inventive 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. (quoting Mayo, 566 U.S. at 72-73). The USPTO has published revised guidance on the application of § 101 consistent with Alice and subsequent Federal Circuit decisions. USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 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”). Appeal 2021-000941 Application 15/528,450 4 Under the Guidance, 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) (referred to Step 2A, prong 1 in the Guidance); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)-(c), (e)-(h)) (referred to Step 2A, prong 2 in the Guidance). See 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 move to Step 2B of the Guidance. There, we look to whether the claim: (3) adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. See Guidance, 84 Fed. Reg. at 56. The Manual of Patent Examining Procedure (“MPEP”) now incorporates this Revised Guidance and subsequent updates at § 2106 (9th ed. Rev. 10.2019, rev. June 2020). Examiner’s Findings and Conclusions The Examiner rejects claim 1 as being directed to a judicial exception without significantly more under the Guidance. Final Act. 2-5. Under Step 2A, prong 1, the Examiner determines that claim 1 is directed to a mental process for calculating an estimated wind speed. Final Act. 3. Under Step 2A, prong two of the Guidance the Examiner determines that the claim “recites one additional element-transmitting a control signal.” Final Act. 3. The Examiner determines that this additional element “amounts to no more Appeal 2021-000941 Application 15/528,450 5 than mere instructions to apply the exception using a generic computer component” and therefore “does not integrate the abstract idea into a practical application.” Final Act. 4. Under Step 2B of the Guidance, the Examiner determines: As discussed above with respect to integration of the abstract idea into a practical application, the additional element of the transmitting/controlling step amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Final Act. 4. Appellant’s Contentions Appellant argues the Examiner has erred because the claims are not directed to a judicial exception. Appeal Br. 12-15. More specifically, Appellant argues the claims do not recite a judicial exception under Step 2A, prong 1 because “[w]hile ‘calculating an estimated wind speed’ is recited in independent claims 1, 8, and 9, the Examiner mischaracterizes the claims by ignoring other limitations of the claims.” Appeal Br. 13. Appellant further argues the claims integrate any recited abstract idea into a practical application under prong 2 because (1) “the claims improve the technology of accurate and reliable control of a wind turbine,” (2) “any abstract idea in the claims is implemented by (or used in conjunction with) a control system and instrumentation on a rotor and wind turbine blades of the wind turbine,” and (3) “the claims apply the judicial exception in a meaningful way through performing the combination of functions during operation of the wind turbine . . . [such that] the claims cannot rightly be Appeal 2021-000941 Application 15/528,450 6 said to be merely a ‘drafting effort designed to monopolize’ the abstract idea.” Appeal Br. 14. Under Step 2B, Appellant argues the claims amount to significantly more because “the claims recite specific, inventive techniques for improving accuracy and reliability of wind turbine control.” Appeal Br. 15. Revised Guidance, Step 2A, Prong One2 The Judicial Exception Applying the Guidance, we are not persuaded the Examiner has erred in determining that the claims recite a judicial exception to patent eligible subject matter. The Guidance identifies three judicially excepted groupings: (1) mathematical concepts, (2) certain methods of organizing human activity such as fundamental economic practices and commercial interactions, and (3) mental processes. We focus our analysis on the third grouping-mental processes. We conclude the limitations of claim 13 recite a mental process under the Guidance.4 For example, claim 1 recites (1) “obtaining a rotational speed of the rotor,” (2) “obtaining a pitch angle of the wind turbine blades,” 2 Throughout this opinion, we give the claim limitations the broadest reasonable interpretation consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). 3 Appellant’s arguments against the § 101 rejection are made to the claims generally, and we treat claim 1 as representative. 37 C.F.R. § 41.37(c)(1)(iv) (2018) (“When multiple claims subject to the same ground of rejection are argued as a group or subgroup by Appellant, the Board may select a single claim from the group or subgroup and may decide the appeal as to the ground of rejection with respect to the group or subgroup on the basis of the selected claim alone.”). 4 Several of the limitations, such as the “deriving,” and “calculating” steps, also can be characterized as being mathematical concepts under the Guidance. Appeal 2021-000941 Application 15/528,450 7 (3) “deriving a blade torsion contribution based on the rotational speed and the pitch angle,” (4) “calculating an adjusted pitch angle as a sum of the pitch angle and the blade torsion contribution,” (5) “calculating an estimated wind speed based on the rotational speed and the adjusted pitch angle,” (6) “wherein calculating the estimated wind speed comprises: calculating an estimated power output of the wind turbine for the estimated wind speed,” (7) “comparing the estimated power output to a measured power output of the wind turbine,” and (8) “determining, based on the comparison, whether to update the estimated wind speed.” Appeal Br. 18 (Claims Appendix). These limitations each recite an abstract mental process under the Guidance because they each can be performed by a human in their mind either through observation, evaluation or judgment, and also because they can be performed by a human with the aid of pen and paper. See October 2019 Guidance Update at 7 (“[E]xamples of mental processes include observations, evaluations, judgments, and opinions.”), 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)). For example, limitations (1) and (2), which recite obtaining the rotational speed of the rotor and the pitch angle of the wind turbine blades, relate to collecting information or data, which can be regarded as observations under the Guidance. See, e.g., Intellectual Ventures I v. Capital One Fin. Corp., 850 F.3d 1332 (Fed. Cir. 2017); Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016); Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057, 1067 (Fed. Cir. 2011)). Appeal 2021-000941 Application 15/528,450 8 Limitation (3), which recites deriving a blade torsion contribution from the rotational speed and pitch angle of the wind turbine, can be performed by a person performing the necessary calculations with the aid of pen and paper. Appellant’s Specification describes one technique for deriving the blade torsion contribution as “using a blade torsion look-up table comprising interrelated values of rotational speed, ∞, pitch angle, θ, and blade torsion contribution.” Spec. 4, ll. 24-26. Using a look-up table to determine a blade torsion contribution derivation is an action that can be performed mentally or with the aid of pen and paper. Limitation (4), which recites calculating an adjusted pitch angle as a sum of the pitch angle and the blade torsion contribution, can also be performed by a person by simply adding the two values in their mind or with the aid of pen and paper. Limitation (5), which recites calculating an estimated wind speed based on the rotational speed and adjusted pitch angle, is simply another calculation that a person can perform in their mind or with the aid of pen and paper. The Specification again provides insight here. The Specification states that the estimation of wind speed can be performed using a “look-up table comprising interrelated values of rotational speed, ∞, wind speed, v, adjusted pitch angle, θ’, and power coefficient.” Spec. 5, ll. 30-32. Limitations (6)-(8) recite calculating the estimated wind speed by performing a series of steps that include calculating an estimated power output of the wind turbine for the estimated wind speed, comparing the estimated power output to a measured power output of the wind turbine, and using that comparison to determine whether to update the estimated wind speed. The calculation of the estimated power output, as recited in Appeal 2021-000941 Application 15/528,450 9 limitation (6), can be performed by a person in their mind or with the aid of pen and paper, and also because doing so can be achieved by a person performing an evaluation and/or making a judgment as part of the estimation of power output. Similarly, a comparison of the estimated power output to the measured output, as recited in limitation (7), is merely an evaluation that can be performed by a person in their mind, and using that comparison to determine whether to update the estimated wind speed, as recited in limitation (8), is also an exercise in judgment, which also falls within the mental process category. Accordingly, we conclude the claimed process set forth in claim 1 recites a judicial exception of a mental process under the Guidance. Revised Guidance, Step 2A, Prong Two Integration of the Judicial Exception into a Practical Application Having determined that claim 1 recites a judicial exception, our analysis under the Guidance turns now to determining whether claim 1 recites any additional elements that integrate the judicial exception into a practical application. See Guidance, 84 Fed. Reg. at 54-55 (citing MPEP § 2106.05(a)-(c), (e)-(h)). Under the Guidance, limitations that are indicative of “integration into a practical application” include: 1. Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP § 2106.05(a); 2. Applying the judicial exception with, or by use of, a particular machine - see MPEP § 2106.05(b); Appeal 2021-000941 Application 15/528,450 10 3. Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP § 2106.05(c); and 4. Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception - see MPEP § 2106.05(e). In contrast, limitations that are not indicative of “integration into a practical application” include: 1. Adding the words “apply it” (or an equivalent) with the judicial exception, or merely include instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP § 2106.05(f); 2. Adding insignificant extra-solution activity to the judicial exception - see MPEP § 2106.05(g); and 3. Generally linking the use of the judicial exception to a particular technological environment or field of use - see MPEP § 2106.05(h). See Guidance, 84 Fed. Reg. at 54-55 (“Prong Two”). Claim 1 recites the additional limitation of “controlling, based on the estimated wind speed, a control system of the wind turbine.” Appeal Br. 18 (Claims Appendix). We agree with the Examiner that this additional limitation is not sufficient to integrate the abstract idea into a practical application. This limitation presents a close question that requires consideration of its scope under the broadest reasonable interpretation standard. We first Appeal 2021-000941 Application 15/528,450 11 observe that the action of “controlling” recited in the limitation is directed toward a particular object. This is, according to the limitation, an object is controlled. In this case, that object is not the wind turbine itself, but rather “a control system of the wind turbine.” Appeal Br. 18 (Claims Appendix). Thus, the “controlling” does not necessarily affect the operation of the wind turbine, but instead controls a control system. Appellant’s Specification provides almost no detail regarding the claimed “control system.” The Specification describes a “control unit controlling the wind turbine, the rotor and/or a pitch system of the wind turbine.” Spec. 3 ll. 6-7. However, no detail whatsoever regarding the structure and/or configuration of the control unit is provided. Without any such description, we are left to conclude that the claimed control unit amounts only to a generic computer system implementing generic computer technology. Appellant argues that the claims “improve the technology of accurate and reliable control of a wind turbine.” Appeal Br. 14. We disagree because the only recitation of actually controlling a wind turbine is found in the preamble of the claim (“A method of controlling operation of a wind turbine”), and in this case, the preamble merely recites an intended use and/or desired result, but does not recite any positive step of controlling the wind turbine. As we note above, it is a control system that is controlled, but the claim does not explicitly state the wind turbine itself is controlled by the control system; nor does the claim specify what the “controlling” of the control system entails (such as using specific instructions, obtaining particular results, etc.). Rather, the claim merely states that the control system is a control system of the wind turbine, and is itself controlled. As Appeal 2021-000941 Application 15/528,450 12 such, the claim as written does not necessarily improve control of a wind turbine, but instead improves control of a generic computer. In short, Appellant’s claims as written do not expressly require that the abstract mental steps lead to controlling the operation of the wind turbine itself. Instead, the claims recite that a generically-described computer control system is controlled, without specifying any particular result of that control. Thus, the recited controlling of a generic computer system merely evinces the use of conventional computer technology to implement the otherwise abstract process on a computer. It is well-established that the use of generic technology to implement an abstract idea is insufficient to integrate it into a practical application. See MPEP 2106.05(f) (explaining that it is not indicative of integration into a practical application where the claims “merely include instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea”). Accordingly, we agree with the Examiner that the additional recited limitations are not sufficient to integrate the abstract idea into a practical application. The Inventive Concept - Step 2B Having determined the claim is directed to a judicial exception, we proceed to evaluating whether claim 1 adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field (see MPEP § 2106.05(d)) or simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. See Guidance, 84 Fed. Reg. at 56. Appeal 2021-000941 Application 15/528,450 13 Our review of the Examiner’s rejection under Step 2B is guided by the Berkheimer Memorandum, which sets forth what fact finding requirements are applicable to rejections under § 101. Consistent with the Berkheimer Memorandum, we agree with the Examiner that claim 1 does not add specific limitations beyond what is well-understood, routine, and conventional.5 Our analysis focuses largely on the same limitation addressed in Step 2A, prong 2, above. Specifically, we agree with the Examiner that the additional element of “controlling, based on the estimated wind speed, a control system of the wind turbine” does not supply an inventive concept under Step 2B because of the paucity of description regarding the control system in the Specification. This lack of detailed description demonstrates the well-understood, routine, and conventional nature of the recited “controller.” Considering the limitations of claim 1 as an ordered combination, they add nothing further to the equation, as they merely amount to the abstract idea implemented in a generic implementation environment (a generic controller). Because the Examiner correctly concluded claim 1 is directed to a judicial exception, and because Appellant does not identify any error in the Examiner’s determination under step 2B of the Guidance, we sustain the rejection of representative claim 1 under 35 U.S.C. § 101, as well as of the remaining claims. 5 Appellant does not raise a Berkheimer challenge to the adequacy of evidence. Appeal 2021-000941 Application 15/528,450 14 REJECTION UNDER 35 U.S.C. § 102 The Examiner rejects claim 1 as anticipated by Koerber, which relates to “methods and systems for operating a wind turbine” (Koerber ¶ 1). Final Act. 5-7. Appellant disputes the Examiner’s findings with respect to two limitations: deriving a blade torsion contribution based on the rotational speed and the pitch angle; [and] calculating an adjusted pitch angle as a sum of the pitch angle and the blade torsion contribution. Relevant to the issues raised by Appellant, the Examiner finds that Koerber’s description of a “twist determination sub-module” discloses the disputed “deriving” limitation (citing Koerber ¶ 56) and Koerber’s description of a pitch adjustment system discloses “calculating an adjusted pitch angle as a sum of the pitch angle and the blade torsion contribution” (citing Koerber ¶ 35). Final Act. 6. Appellant argues against the anticipation rejection. With respect to the first disputed limitation, Appellant asserts that although Koerber’s pitch adjustment system “describes determining blade-twist values ‘based on an estimation inferred from actual values of parameters indirectly correlated to blade-twist . . . Koerber is silent as to specifically ‘deriving a blade torsion contribution based on the rotational speed and the pitch angle.’” Appeal Br. 16. We disagree. Koerber discloses blade-twist values can be determined based on “rotor rotation rate or blade pitch angle.” Koerber ¶ 56. Koerber further discloses that blade-twist values “may be based on lookup tables associating plate-twist with some wind turbine parameters such as rotor speed and/or blade pitch angle.” Koerber ¶ 58. We agree with the Examiner that these Appeal 2021-000941 Application 15/528,450 15 portions of Koerber disclose “deriving a blade torsion contribution based on the rotational speed and the pitch angle,” as recited in claim 1. With respect to the second disputed limitation, we are persuaded of error. Appellant argues that while the cited description in paragraph 35 of Koerber describes an adjusted pitch angle, it does not describe adjusting the pitch angle specifically “as a sum of the pitch angle and the blade torsion contribution.” Appeal Br. 15-16. We agree with Appellant because the cited passage in Koerber does not specifically describe adding the pitch angle to a blade torsion contribution in order to adjust the pitch angle. Rather, Koerber only discloses that the pitch adjustment system 32 may change the pitch angle, but does not describe the specific calculations that are used to do so. As such, Koerber does not disclose “calculating an adjusted pitch angle as a sum of the pitch angle and the blade torsion contribution,” as recited in claim 1, and we do not sustain the anticipation rejection. Independent claims 8 and 9 recite the same limitation, and the remaining claims are dependent. As a result, we do not sustain their rejection under § 102 for the same reason. CONCLUSION We affirm the Examiner’s decision to reject the claims for lack of patent eligibility under 35 U.S.C. § 101. We reverse the Examiner’s decision to reject the claims as anticipated by Koerber under 35 U.S.C. § 102. Because we have affirmed at least one ground of rejection for each claim on appeal, we affirm the Examiner's decision to reject the claims. 37 C.F.R. § 41.50(a)(1). Appeal 2021-000941 Application 15/528,450 16 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3-6, 8- 22 101 Eligibility 1, 3-6, 8- 22 1, 3-6, 8- 22 102 Koerber 1, 3-6, 8- 22 Overall Outcome 1, 3-6, 8- 22 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED