Bayerische Motoren Werke Aktiengesellschaft

Patent Trials and Appeals BoardAug 31, 2020

2020000033 (P.T.A.B. Aug. 31, 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. 15/005,258 01/25/2016 Benoit VANHOLME 080437.68505US 5880 23911 7590 08/31/2020 CROWELL & MORING LLP INTELLECTUAL PROPERTY GROUP P.O. BOX 14300 WASHINGTON, DC 20044-4300 EXAMINER ANWARI, MACEEH ART UNIT PAPER NUMBER 3663 NOTIFICATION DATE DELIVERY MODE 08/31/2020 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): edocket@crowell.com mloren@crowell.com tche@crowell.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BENOIT VANHOLME and MICHAEL MANZ ____________ Appeal 2020-000033 Application 15/005,258 Technology Center 3600 ____________ Before HUBERT C. LORIN, NINA L. MEDLOCK, and MATTHEW S. MEYERS, Administrative Patent Judges. LORIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks our review under 35 U.S.C. § 134(a) of the Final Rejection of claims 1–19. We have jurisdiction under 35 U.S.C. § 6(b) (2012). We REVERSE and enter a NEW GROUND of rejection. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Bayerische Motoren Werke Aktiengesellschaft as the real party in interest. Appeal Br. 1. Appeal 2020-000033 Application 15/005,258 2 THE INVENTION The claimed subject matter “relates to a method for efficiently providing occupancy information for the surroundings of a vehicle and to a computation apparatus that is set up accordingly” (Spec. para. 2). Claim 1 is illustrative, and is reproduced below: 1. A method for providing occupancy information for surroundings of a vehicle, wherein the vehicle comprises sensors for determining occupancy of the surroundings, the method comprising the acts of: receiving sensor measurements of the surroundings of the vehicle; determining the occupancies of the surroundings by obstacles based on the sensor measurements; dividing the surroundings into regions; for each region of the surroundings: identifying multiple occupancies of the surroundings in the respective region; determining a most certainly identified occupancy of the identified multiple occupancies in the respective region and a closest occupancy of the identified multiple occupancies, which closest occupancy is that occupancy in the respective region for which a shortest distance to the vehicle has been determined according to a distance determination specified for the respective region; and providing the most certainly identified occupancy and the closest occupancy to a driver assistance system of the vehicle. Appeal Br. 10 (emphasis added). Appeal 2020-000033 Application 15/005,258 3 THE REJECTIONS The following rejections are before us for review: Claims 1, 2, 18, and 19 are rejected under 35 U.S.C. § 103(a) as unpatentable over Nishiwaki (US 6,163,252, issued Dec. 19, 2000) and Okuda et al. (US 2011/0149690 A1, published June 23, 2011) (“Okuda”).2 Claims 3–17 are rejected under 35 U.S.C. § 103(a) as unpatentable over Nishiwaki, Okuda, and Borenstein et al. (US 5,006,988, issued Apr. 9, 1991) (“Borenstein”). ANALYSIS The rejection of claims 1, 2, 18, and 19 under 35 U.S.C. § 103(a) as unpatentable over Nishiwaki and Okuda. Claims 1, 18, and 19 are the independent claims. Claim 1 recites a method for providing occupancy information for surroundings of a vehicle, the method comprising, inter alia, “for each region of the surroundings:” (1) “identifying multiple occupancies of the surroundings in the respective region” and (2) “determining a most certainly identified occupancy of the identified multiple occupancies in the respective region.” Claims 18 and 19 contain similar limitations. The Examiner finds that Nishiwaki discloses the limitations of claim 1 reproduced above, but the Examiner acknowledges that Nishiwaki does not disclose the limitations related to “closest occupancy” and the “providing” step of claim 1 (Final Act. 2–4). The Examiner relies on Okuda as disclosing these missing limitations. 2 The Examiner refers to the Okuda reference as “Denso” (Final Act. 2), the name of the assignee on Okuda’s published application. Okuda, (73). Appeal 2020-000033 Application 15/005,258 4 Appellant argues that Nishiwaki, on which the Examiner relies, does not disclose the claim 1 limitation of “identifying multiple occupancies of the surroundings in the respective region” (Appeal Br. 4–6). According to Appellant, Nishiwaki discloses “dividing a region into a matrix of sub- regions Ei . . . however, there is only a single probability (i.e., alleged occupancy) in each of the sub-regions Ei” (id. at 5) (reproducing Figure 5 of Nishiwaki). Responding to Appellant’s argument, the Examiner states in the Answer: nowhere in the claim has applicant defined what a “region” consists of (i.e., made up of); or quite simply put a region can simply be taken to mean the front area/portion of the car, the side areas/portions and/or the back area/portion – wherein each of either area and/or portion are equivalent terminologies for the word region. (Ans. 9). According to the Examiner: Therefore the most reasonable broadest interpretation is that Nishiwaki does in fact disclose a region as depicted in figure 5 which clearly shows, via a respective regional sensor, the detection of multiple objects/obstacles (i.e., each region can detect multiple obstacles). (Id. at 10). In other words, as best understood, the Examiner’s position is that any arbitrary group of Nishiwaki’s sub-regions Ei (such as the front/side/rear of the vehicle) is considered a claimed “region” under a broadest reasonable interpretation, and thus any arbitrary group of Nishiwaki’s regions Ei contains multiple identified occupancies as claimed. In response to the Examiner’s Answer, Appellant argues that Nishiwaki does not disclose the claim 1 limitation of “determining a most Appeal 2020-000033 Application 15/005,258 5 certainly identified occupancy in the respective region” (Reply Br. 2). According to Appellant, “Nishiwaki thus either fails to teach (a) identifying multiple occupancies for each region, or (b) determining a most certainly identified occupancy of the identified multiple occupancies” (id.). Appellant argues that, even under the Examiner’s broad interpretation of “region” in the Answer, Nishiwaki “still does not meet the claim limitation – which requires the affirmative determination of which of such multiple identified objects Z [“occupancies” of claim 1] is the most certainly identified of them all” (id.). We agree with Appellant that the Examiner has not adequately explained how Nishiwaki discloses “determining a most certainly identified occupancy in the respective region” as called for in claims 1, 18, and 19. The Examiner’s rejection simply cites Nishiwaki’s probability-of-presence operation means 33 and 34 and probability distribution operation means 35 as disclosing the claimed “determining” step (Final Act. 3), without adequately explaining how the cited elements of Nishiwaki meet the claim language. Nishiwaki discloses a device for detecting obstacles, for use in vehicles, using a plurality of sensor devices (Nishiwaki, Abstract). The operation of Nishiwaki’s device is described as follows: The detection region-setting means 31, 32 and the probability-of-presence operation means 33, 34 in the signal processing means 3 are arranged in parallel to correspond to the sensor means 1 and 2. The detection region-setting means 31 and 32 divide the region E to be detected around the vehicle C into a plurality of matrix-like detection regions Ei (i=l to n)(see FIG. 2), and produce reception signals Ai, Bi (i=l to n) for each of the detection regions Ei. Appeal 2020-000033 Application 15/005,258 6 Based on the reception signals Ai and Bi, the probability- of-presence operation means 33 and 34 operate probabilities of the presence of the obstacle Z in the detection regions Ei as in- the-region presence probabilities Pi, Qi (i=l to n). The probability distribution operation means 35 synthesizes the in-the-region presence probabilities Pi and Qi for each of the detection regions Ei to operate the distribution of presence probabilities, and operates the final in-the-region presence probabilities Ri (i=l to n) for each of the detection regions Ei in the distribution of presence probabilities. Based on the in-the-region presence probabilities Ri in the distribution of presence probabilities, the obstacle detection means 36 judges the regions S where the obstacle Z exists, and detects the position and size of the obstacle Z from the regions S where the obstacle Z exists. The obstacle detection means 36 includes a threshold value-setting means for setting a judging standard (threshold value) for the regions S where the obstacle exists, and a comparator means for comparing the in-the-region presence probabilities Ri with the threshold value, and judges the detection regions Ei that exhibit the in-the-region presence probabilities larger than the threshold value to be the regions S where the obstacle exists among the in-the-region presence probabilities Ri. (Id. at 5:20–48). The operation of Nishiwaki’s device is further described, with reference to Figures 4–7: As shown in FIG. 4, therefore, the detection region- setting means 31 and 32 find the reception signals Ai, Bi for each of the detection regions Ei based on the levels of the reception signals A, B turned about the positions of the sensor means 1 and 2. Then, the probability-of-presence operation means 33 and 34 find the in-the-region presence probabilities Pi and Qi based on the reception signals Ai, Bi as shown in FIGS. 5 and 6. The probability distribution operation means 35 synthesizes the in-the-region presence probabilities Pi and Qi, Appeal 2020-000033 Application 15/005,258 7 and finds the final in-the-region presence probabilities Ri in the distribution of presence probabilities as shown in FIG. 7. Finally, the obstacle detection means 36 compares the in- the-region presence probabilities Ri (see FIG. 7) in each of the detection regions Ei with a predetermined threshold value Th, and produces the detection regions Ei that exhibit in-the-region presence probabilities Ri of not smaller than the threshold value Th as the regions S where the obstacle Z exists. In FIG. 7, for instance, the detection regions exhibiting the in-the-region presence probabilities Rp of levels of not smaller than the threshold value Th are produced as the regions S where the obstacle exist. (Id. at 6:32–55). In other words, Nishiwaki discloses that probability-of-presence operation means 33 and 34 process data from sensor means 1 and 2, respectively (id., Figure 1), to create in-the-region presence probabilities Pi and Qi, respectively. Pi and Qi are then synthesized by probability distribution operation means 35 to determine final in-the-region presence probabilities Ri for each region Ei. Then, each region’s Ri is compared to a threshold value by the obstacle detection means 36, and only values not below the threshold are used to identify regions where an obstacle exists. There is no discussion of “determining a most certainly identified occupancy” in any given region Ei or group of regions. Instead, Nishiwaki teaches that each region Ei has exactly one Pi, Qi, and Ri. Every Ri value for every region is compared to a threshold value and essentially ignored if it is below the threshold. There is no comparison of probability values within a given region (i.e., no intra-region comparison), or from one region to another region (i.e., no inter-region comparison), to determine which probability is the most certain. Thus, it is not apparent how Nishiwaki discloses the Appeal 2020-000033 Application 15/005,258 8 claimed “determining a most certainly identified occupancy of the identified multiple occupancies in the respective region” for each region, or, indeed, for any arbitrary group of regions. For the foregoing reasons, the rejection of independent claims 1, 18, and 19, and claim 2, which depends from claim 1, is not sustained. The rejection of claims 3–17 under 35 U.S.C. § 103(a) as unpatentable over Nishiwaki, Okuda, and Borenstein. With regard to this rejection, the Examiner does not rely on the additional reference (Borenstein) to cure the deficiency discussed above. Thus, the rejection of claims 3–17 is not sustained for the reasons given above for not sustaining the rejection of independent claim 1 from which they depend. NEW GROUND OF REJECTION Claims 1–17 are rejected under 35 U.S.C. § 101 as being directed to judicially-excepted subject matter. Preliminary comment After the Final Office Action was mailed on March 12, 2018, the U.S. Patent and Trademark Office (the “USPTO”) published revised guidance on January 7, 2019 for use by USPTO personnel in evaluating subject matter eligibility under 35 U.S.C. § 101. 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50, 57 (Jan. 7, 2019) (the “2019 Revised Guidance”).3 That guidance revised the USPTO’s 3 The USPTO issued an update on October 17, 2019 (the “October 2019 Update: Subject Matter Eligibility,” available at https://www.uspto.gov/sites/ default/files/documents/peg_oct_2019_update.pdf) clarifying the 2019 Revised Guidance in response to public comments. Appeal 2020-000033 Application 15/005,258 9 examination procedure with respect to the first step of the Mayo/Alice framework by (1) “[p]roviding groupings of subject matter that [are] considered an abstract idea”; and (2) clarifying that a claim is not “directed to” a judicial exception if the judicial exception is integrated into a practical application of that exception. Id. at 50. The 2019 Revised Guidance, by its terms, applies to all applications, and to all patents resulting from applications, filed before, on, or after January 7, 2019. Id. Introduction 35 U.S.C. § 101 provides that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.” In that regard, claim 1 covers a “process” and is thus statutory subject matter for which a patent may be obtained.4 This is not in dispute. However, the 35 U.S.C. § 101 provision “contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)). Notwithstanding claim 1 covers statutory subject matter, claim 1 is directed to an abstract idea. Specifically, we determine that claim 1 is directed to providing occupancy information for surroundings of a vehicle. 4 This corresponds to Step 1 of the 2019 Revised 101 Guidance which requires determining whether “the claim is to a statutory category.” 84 Fed. Reg. at 53. See also id. at 53–54 (“consider[] whether the claimed subject matter falls within the four statutory categories of patentable subject matter identified by 35 U.S.C. 101.”). Appeal 2020-000033 Application 15/005,258 10 Alice identifies a two-step framework for determining whether claimed subject matter is directed to an abstract idea. Alice, 573 U.S. at 217. Alice step one — the “directed to” inquiry: According to Alice step one, “[w]e must first determine whether the claims at issue are directed to a patent-ineligible concept.” Alice, 573 U.S. at 218 (emphasis added). Claim Construction5 We consider the claim as a whole giving it the broadest reasonable construction as one of ordinary skill in the art would have interpreted it in light of the Specification at the time of filing.6,7,8 Claim 1 recites three initial steps: the first step calls for “receiving” certain information about the surroundings of a vehicle, the second step calls 5 “[T]he important inquiry for a § 101 analysis is to look to the claim.” Accenture Glob. Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1345 (Fed. Cir. 2013). “In Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can., 687 F.3d 1266, 1273 (Fed. Cir. 2012), the court observed that ‘claim construction is not an inviolable prerequisite to a validity determination under § 101.’ However, the threshold of § 101 must be crossed; an event often dependent on the scope and meaning of the claims.” Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1347–48 (Fed. Cir. 2015). 6 “In determining the eligibility of respondents’ claimed process for patent protection under § 101, their claims must be considered as a whole.” Diamond v. Diehr, 450 U.S. 175, 188 (1981). 7 “First, it is always important to look at the actual language of the claims. . . . Second, in considering the roles played by individual limitations, it is important to read the claims ‘in light of the specification.’” Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1378 (Fed. Cir. 2017) (J. Linn, dissenting in part and concurring in part) (citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) among others). 8 See 2019 Revised 101 Guidance, 84 Fed. Reg. at 52, footnote 14 (“If a claim, under its broadest reasonable interpretation . . .” (emphasis added)). Appeal 2020-000033 Application 15/005,258 11 for “determining” information based on the received information, and the third step calls for “dividing the surroundings into regions.” Next, claim 1 recites three additional steps that are performed “for each region of the surroundings:” “identifying” information, “determining” additional information, and “providing” the determined information to “a driver assistance system of the vehicle.” Notably, claim 1 does not identify any particular device or entity that performs the recited steps. The preamble of claim 1 indicates that “the vehicle comprises sensors” and the final limitation of claim 1 calls for “providing” information to “a driver assistance system.” Yet, claim 1 does not indicate that any claimed steps are performed by the sensors or by the driver assistance system. For example, claim 1 does not specify that a computer or other device performs any of the “receiving,” “determining,” “dividing,” “identifying,” “determining,” and “providing” steps. We note that the Specification describes, by way of example, that “[i]n a further aspect, a computer program is set up to prompt a computer, when executed, to carry out a method according to the invention.” Spec. para. 19. Yet, the Specification makes clear that the claims are not limited to any particular disclosed embodiments or aspects. See id. para. 32 (“The foregoing disclosure has been set forth merely to illustrate the invention and is not intended to be limiting.”) Accordingly, as reasonably broadly construed in light of the Specification, the “receiving,” “determining,” “dividing,” “identifying,” “determining,” and “providing” steps of claim 1 encompass any entity performing the recited method steps. Appeal 2020-000033 Application 15/005,258 12 Given the method as claimed and in light of the Specification, we reasonably broadly construe claim 1 as being directed to a method for providing occupancy information for surroundings of a vehicle that encompasses any entity, including the human mind, performing the steps of the method. The Abstract Idea9 Above, where we reproduce claim 1, we identify in italics the limitations we believe recite an abstract idea.10 Based on our claim construction analysis (above), we determine that the identified limitations describe a method of providing occupancy information for surroundings of a vehicle. Because claim 1 encompasses any entity performing the recited steps, including the human mind, it falls within the enumerated “[m]ental processes” grouping of abstract ideas set forth in the 2019 Revised 101 9 This corresponds to Step 2A of the 2019 Revised 101 Guidance. Step 2A determines “whether a claim is ‘directed to’ a judicial exception,” such as an abstract idea. Step 2A is two prong inquiry. 10 This corresponds to Prong One (a) of Step 2A of the 2019 Revised 101 Guidance. “To determine whether a claim recites an abstract idea in Prong One, examiners are now to: (a) Identify the specific limitation(s) in the claim under examination (individually or in combination) that the examiner believes recites an abstract idea.” 84 Fed. Reg. at 54. Appeal 2020-000033 Application 15/005,258 13 Guidance.11 2019 Revised 101 Guidance, 84 Fed. Reg. at 52. For example, claim 1 encompasses a person observing sensor measurements, identifying “multiple occupancies of the surroundings” in each region, evaluating that information, and providing a judgment about that information to a driver assistance system of the vehicle. Technical Improvement12 Claim 1 is not limited to a specific implementation of a technological improvement to driver assistance systems. As discussed above, claim 1 generically provides for receiving and evaluating information by some 11 This corresponds to Prong One [“Evaluate Whether the Claim Recites a Judicial Exception”] (b) of Step 2A of the 2019 Revised 101 Guidance. “To determine whether a claim recites an abstract idea in Prong One, examiners are now to: . . . (b) determine whether the identified limitation(s) falls within the subject matter groupings of abstract ideas enumerated in Section I of the [2019 Revised 101 Guidance].” 84 Fed. Reg. at 54. This case implicates subject matter grouping “(c):” “(c) Mental processes — concepts performed in the human mind (including an observation, evaluation, judgment, opinion).” Id. at 52 (footnotes omitted). 12 This corresponds to Prong Two [“If the Claim Recites a Judicial Exception, Evaluate Whether the Judicial Exception Is Integrated Into a Practical Application”] of Step 2A of the 2019 Revised 101 Guidance. “A claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” 84 Fed. Reg. at 54. One consideration, implicated here, that is “indicative that an additional element (or combination of elements) may have integrated the exception into a practical application” is if “[a]n additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field.” Id. at 55 (footnotes omitted). Appeal 2020-000033 Application 15/005,258 14 unspecified entity. Claim 1 does not require even a generic computer or computer memory, and thus does not involve any particular way of organizing information in a computer. Cf. Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016) (holding that claims directed to organization of data in a table in computer memory and a system for indexing that data involved an improvement to computer functionality itself). Claim 1 also does not recite specific details of the sensors or the driver assistance system. It does not, for example, involve any particular configuration of sensors. Cf. Thales Visionix Inc. v. United States, 850 F.3d 1343, 1349 (Fed. Cir. 2017) (finding patent eligibility where the “claims specify a particular configuration of inertial sensors and a particular method of using the raw data from the sensors”). The Specification describes the configuration of the sensors, as well as methods for identifying occupancies, as conventional.13 We note that the Specification describes that an objective of the invention is to provide occupancy information in an efficient way that “demands less memory space and transmission time, and at the same time provides the necessary information” that is “particularly advantageous for real-time systems.” Spec. para. 8. Yet, claim 1 does not recite any “memory,” “memory space,” or “real-time systems,” and thus claim 1 clearly does not require any arguably inventive improvement to computer technology that may be described in the Specification. See Accenture Glob. 13 Spec. para. 3 (“[T]he surroundings are scanned or recorded using one or more sensors, such as radar, lidar, camera, ultrasonic sensors or similar sensors known from the prior art. Signal processing methods that are likewise known in the prior art can then be used to identify the occupancy of the surroundings by an obstacle”). Appeal 2020-000033 Application 15/005,258 15 Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1345 (Fed. Cir. 2013) (“[T]he complexity of the implementing software or the level of detail in the specification does not transform a claim reciting only an abstract concept into a patent-eligible system or method.”); see also Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1322 (Fed. Cir. 2016) (“The district court erred in relying on technological details set forth in the patent’s specification and not set forth in the claims to find an inventive concept.” (citing Accenture, 728 F.3d at 1345, and Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass’n, 776 F.3d 1343, 1346 (Fed. Cir. 2014))). By so broadly defining the inventive method, that is, by setting out what it is aspiring to accomplish without any means for achieving it, let alone any purported technological improvement, the claim is in effect presenting the invention in purely result-based functional language, strengthening our determination under Alice step one that the claim is directed to an abstract idea. Cf. Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1337 (Fed. Cir. 2017) (“Claim 1 recites a method for routing information using result-based functional language. The claim requires the functional results of ‘converting,’ ‘routing,’ ‘controlling,’ ‘monitoring,’ and ‘accumulating records,’ but does not sufficiently describe how to achieve these results in a non-abstract way.”). Appeal 2020-000033 Application 15/005,258 16 Alice step two — Does the Claim Provide an Inventive Concept?14 Step two is “a search for an ‘inventive concept’—i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Alice, 573 U.S. at 217–18 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 73 (2012) (alteration in original)). The Supreme Court stated in Bilski that, albeit it “is not the sole test for deciding whether an invention is a patent-eligible ‘process,’” the machine-or-transformation test is still a “useful and important clue” and “investigative tool” for determining whether some claimed methods are statutory processes. Bilski v. Kappos, 130 S. Ct. 3218, 3221 (2010). Here, the only mention of any “machine” is found in the preamble of claim 1 (“the vehicle comprises sensors”) and the recitation in the final step of providing information to “a driver assistance system.” As noted above in our discussion of claim construction, claim 1 does not require that any claimed steps are performed by the sensors or by the driver assistance system. Each of the “receiving,” “determining,” “dividing,” “identifying,” “determining,” and “providing” steps of claim 1 is performed by some unspecified entity. Therefore, we determine that the process of claim 1 is not tied to any particular machine or apparatus. We also do not see that claim 1 involves 14 This corresponds to Step 2B, of the 2019 Revised 101 Guidance, 84 Fed. Reg. at 56 “if a claim has been determined to be directed to a judicial exception under revised Step 2A, examiners should then evaluate the additional elements individually and in combination under Step 2B to determine whether they provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself).” Appeal 2020-000033 Application 15/005,258 17 any transformation of the underlying subject matter into a different state or thing. Although claim 1 involves information about “surroundings of a vehicle,” claim 1 does not purport to transform the surroundings or the vehicle in any way. In our analysis above under step one of the Alice framework, we also addressed the matter of whether the claims present any purported specific asserted technical improvements. This is consistent with decisions of our reviewing court. See Ancora Techs., Inc. v. HTC Am., Inc., 908 F.3d 1343, 1347 (Fed. Cir. 2018) (“We have several times held claims to pass muster under Alice step one when sufficiently focused on such improvements.”). We have reviewed the claim in light of the Specification and, as explained above, we find the claimed subject matter insufficiently expresses a technical improvement as a result of performing the functions as broadly as they are recited. We cited the Specification in our earlier discussion. It is intrinsic evidence that the “sensors” set forth in the preamble are conventional. See Spec ¶ 3 (“one or more sensors, such as radar, lidar, camera, ultrasonic sensors or similar sensors known from the prior art”). In doing so, we have followed “Changes in Examination Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP Inc.[, 881 F.3d 1360 (Fed. Cir. 2018)],” USPTO Memorandum, Robert W. Bahr, Deputy Commissioner For Patent Examination Policy, April 19, 2018 (the “Berkheimer Memo”)). The court in Berkheimer held that “[t]he patent eligibility inquiry may contain underlying issues of fact.” See Berkheimer, 881 F.3d at 1365 (citing Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325 Appeal 2020-000033 Application 15/005,258 18 (Fed. Cir. 2016) (“The § 101 inquiry ‘may contain underlying factual issues.”’ (citation omitted))). But the court also held that “[w]hen there is no genuine issue of material fact regarding whether the claim element or claimed combination is well-understood, routine, [and] conventional to a skilled artisan in the relevant field, this issue can be decided on summary judgment as a matter of law.” Berkheimer, 881 F.3d at 1368 (emphasis added). This qualification has been subsequently reiterated. If there is a genuine dispute of material fact, Rule 56 requires that summary judgment be denied. In Berkheimer, there was such a genuine dispute for claims 4–7, but not for claims 1–3 and 9. . . . . [I]n accordance with Alice, we have repeatedly recognized the absence of a genuine dispute as to eligibility for the many claims that have been defended as involving an inventive concept based merely on the idea of using existing computers or the Internet to carry out conventional processes, with no alteration of computer functionality. Berkheimer v. HP Inc., 890 F.3d 1369, 1371, 73 (Fed. Cir. 2018) (Order, On Petition for rehearing en banc, May 31, 2018 (J. Moore concurring)); see also Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1368 (Fed. Cir. 2018) (Order On Petition for Rehearing En Banc) (Reyna, J., dissenting) (“A factual allegation or dispute should not automatically take the determination out of the court’s hands; rather, there needs to be justification for why additional evidence must be considered—the default being a legal determination.”). Here, the Specification indisputably shows the recited “sensors” individually and in the context of a vehicle as recited in the preamble were conventional at the time of filing. Accordingly, there is sufficient factual Appeal 2020-000033 Application 15/005,258 19 support for the well-understood, routine, or conventional nature of the claimed “sensors” individually or in the combination as claimed. Dependent claims 2–17 The dependent claims add various information processing schemes that do little to patentably transform the abstract idea into a patent-eligible application. The dependent claims do not, for example, add any particular machine or require any particular configuration of sensors. For example, claim 2 depends from claim 1 and broadly recites “wherein regions in a direction of travel in front of the vehicle each cover an angular range from the vehicle.” Claim 2 does not specify any details for achieving the functional result that the regions cover an angular range from the vehicle. Thus, claim 2 encompasses any means for achieving the claimed result. Claim 15 broadly recites “[t]he method according to claim 1, further comprising the act of: combining the most certainly identified occupancies of multiple regions to form one continuous occupancy.” Again, no details for achieving this functional result are provided. For the forgoing reasons, we enter a new ground of rejection of claims 1–17 under 35 U.S.C. § 101. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed New Ground 1, 2, 18, 19 103 Nishiwaki, Okuda 1, 2, 18, 19 3–17 103 Nishiwaki, Okuda, Borenstein 3–17 101 Eligibility 1–17 Appeal 2020-000033 Application 15/005,258 20 Overall Outcome 1–19 1–17 NEW GROUND 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 Appellants, 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 . . . . No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). REVERSED; 37 C.F.R. § 41.50(b)