Ex Parte Angel et al

Patent Trial and Appeal BoardNov 30, 2018

14930338 (P.T.A.B. Nov. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/930,338 11/02/2015 113085 7590 Hollingsworth Davis, LLC 8000 West 78th Street Suite 450 Minneapolis, MN 55439 12/04/2018 FIRST NAMED INVENTOR James W. Angel 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 ATTORNEY DOCKET NO. CONFIRMATION NO. PPN.037.Cl 1018 EXAMINER GRANT, MICHAEL CHRISTOPHER ART UNIT PAPER NUMBER 3715 NOTIFICATION DATE DELIVERY MODE 12/04/2018 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): tdotter@hdpatlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAMES W. ANGEL and MICHAEL D. NALEPKA 1 Appeal2018-004580 Application 14/930,33 8 Technology Center 3700 Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. Â§ 134 from the Examiner's decision rejecting claims 1-20 under 35 U.S.C. Â§ 101 as being directed to patent-ineligible subject matter. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 Appellant is the Applicant, Trimble Navigation Limited, which, according to the Appeal Brief, is the real party in interest. Appeal Br. 1. Appeal2018-004580 Application 14/930,338 THE CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A method, comprising: detecting, by an onboard computer coupled to one or more sensors and at least one camera, a predetermined vehicle event based on sensor data at each of a plurality of commercial vehicles each operated by a driver; capturing, by the onboard computer of each vehicle, vehicle event data and a video clip in response to the predetermined vehicle event; transmitting, by each of the vehicles, the vehicle event data and the video clip; receiving, at a central office, the vehicle event data and the video clip from the vehicles; generating, using a processor at the central office, driver behavior scoring algorithmically based on the received data and on manual evaluation of the video clip, wherein the processor is configured to detect violations in the received data and algorithmically apply severity ratings to score the detected violations, and wherein the severity ratings and the driver behavior scoring are consistent with driver behavior scoring conducted by a governmental inspection authority; electronically acquiring, at the central office, driver violation data collected and scored by the governmental inspection authority; producing, using the processor, an output comprising at least the driver behavior scoring and the driver violation scoring for each of the drivers of the plurality of commercial vehicles; transmitting the output from the processor to the onboard computer of the vehicles; and displaying a visual representation of the output on a display of the vehicles or of the corresponding drivers. 2 Appeal2018-004580 Application 14/930,338 DISCUSSION In contesting the rejection, Appellant references certain limitations recited in independent claim 1, but otherwise presents arguments without regard to any particular claim. See Appeal Br. 8-11; Reply Br. 8-10. Thus, we select independent claim 1 as representative of the claims subject to this rejection, with claims 2-20 standing or falling with claim 1. 37 C.F.R. Â§ 4I.37(c)(l)(iv). Section 101 of the patent law provides that one may obtain a patent for "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." 35 U.S.C. Â§ 101. The Supreme Court has held that this provision includes important exceptions, notably those that prohibit one from patenting abstract ideas, laws of nature, or natural phenomena. Alice Corp. Pty. Ltd. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2354 (2014). Although a law of nature or an abstract idea is not patentable, the application of these concepts may be patentable. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 70-72 (2012). The Supreme Court has set forth "a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts." Alice, 134 S. Ct. at 2355 (citing Mayo, 566 U.S. at 71-72). Under that framework, we first "determine whether the claims at issue are directed to one of those patent-ineligible concepts"-i.e., a law of nature, a natural phenomenon, or an abstract idea. Id. If so, we secondly "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. (quoting Mayo, 566 U.S. at 77-79). The Supreme Court 3 Appeal2018-004580 Application 14/930,338 has described the second part of the analysis 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. (alteration in original) (quoting Mayo, 566 U.S. at 72-73). Part One: Do the Claims Recite an Abstract Idea? The Federal Circuit has described the first step as a determination of the "basic character of the claimed subject matter." Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348 (Fed. Cir. 2015) (citing Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Canada, 687 F.3d 1266, 1273-74 (Fed. Cir. 2012)). The Federal Circuit has also indicated that this step should determine whether a claimed method "recites an abstraction-an idea, having no particular concrete or tangible form." Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014); see also Alice, 134 S. Ct. at 2355 ("The 'abstract ideas' category embodies 'the longstanding rule that "[a]n idea of itself is not patentable.""' (quoting Gottschalkv. Benson, 409 U.S. 63, 67 (1972) (further quotations and citations omitted))). The Examiner determines that claim 1 is "directed to an abstract idea in the form of mathematical relationships/formulas, similar to the mathematical algorithm found to be patent ineligible in Parker v[.] Flook[, 437 U.S. 584 (1978)]." Final Act. 3 (boldface omitted). The Examiner explains that, "[l]ikewise as in the instant Application, ... Flook concerned taking as inputs certain data inputs, making various mathematic computations, and then outputting a numerical result." Id. Appellant does not contest the Examiner's determination that the claim is directed to an abstract idea. See Appeal Br. 9-10 ( acknowledging that "the courts have 4 Appeal2018-004580 Application 14/930,338 considered such mathematical operations to fall within a judicial exception, e.g., an abstract idea"). In fact, Appellant expressly states that "the answer to Step 2A [(whether the claim is directed to a judicial exception)] of the analysis would be 'yes."'2 Id. at 10. We agree with the Examiner that claim 1 is directed to an abstract idea involving mathematical algorithms. See Final Act. 5; Ans. 2-3. In particular, claim 1 recites steps of detecting and capturing vehicle sensor data and video data, transmitting the data to a central office, algorithmically generating a driver behavior score based on the sensor data and manual review of the video data, acquiring driver violation data, producing and transmitting an output of driver behavior and violation scoring, and displaying a visual representation of the output on a display. Such activity amounts to receiving information (i.e., sensor data and video data) and manipulating the information using an algorithm to generate additional information (i.e., driver behavior and violation scores). 3 Our reviewing courts have held claims ineligible under Â§ 101 when directed to manipulating existing information, such as by using algorithms, to generate 2 At Step 1, the Examiner asks whether the claim is to one of the statutory categories of35 U.S.C. Â§ 101; at Step 2A, the Examiner asks whether the claim is directed to a judicial exception (e.g., abstract idea); at Step 2B, the Examiner asks whether the claim amounts to significantly more. Manual of Patent Examining Procedure (MPEP) Â§Â§ 2106, 2106.04, 2106.05 (9th ed., Rev. Jan. 2018). 3 Although claim 1 recites the algorithm in words rather than as a mathematical formula, the claims nevertheless recite an algorithm. See In re Grams, 888 F.2d 835, 837 n.1 (Fed. Cir. 1989) ("It is ofno moment that the algorithm is not expressed in terms of a mathematical formula. Words used in a clairn operating on data to solve a problem can serve the same purpose ,:' 1 ,,, as a 1ormu a. ). 5 Appeal2018-004580 Application 14/930,338 additional information. See Flook, 437 U.S. at 585, 594--96 (rejecting as ineligible claims directed to (1) measuring the current value for a variable in a catalytic conversion process, (2) using an algorithm to calculate an updated "alarm-limit value" for that variable, and (3) updating the limit with the new value); Gottschalk, 409 U.S. at 71-72 (rejecting as ineligible claims directed to an algorithm for converting binary-coded decimal numerals into pure binary form); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353- 54 (Fed. Cir. 2016) (discussing how "collecting information" and "analyzing information by steps people go through in their minds, or by mathematical algorithms, without more" are abstract ideas); Digitech Image Techs., LLC v. Elecs.for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014) ("Without additional limitations, a process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible."). The operations of collecting, generating, producing, and displaying recited in claim I are akin to the subject matter of such claims determined to be an abstract idea. Part Two: Is There an Inventive Concept? Appellant argues that the additional elements recited in the claim amount to significantly more than the abstract idea. See Appeal Br. 10-11; Reply Br. 8-10. Appellant asserts that "the claims show an improvement to another technology similar to the claims proclaimed to be patent eligible in what the United States Patent and Trademark Office describes as an exemplary subject matter eligibility analysis for eligible claims under Â§ 101 (Example 4)," which is modeled after the technology in SiRF Technology Inc. v. ITC, 601 F.3d 1319 (Fed. Cir. 2010). Appeal Br. 8 (citing Examples: Abstract Ideas, issued Jan. 27, 2015, Example 4 (Global Positioning 6 Appeal2018-004580 Application 14/930,338 System)). According to Appellant, "[s]imilar to Example 4, the application of Appellant's algorithm to the claimed vehicle event data results in the improvement of driver behavior analysis where such data was previously not used, or unavailable, for consistent scoring with a governmental inspection authority." Reply Br. 9--10. We are not persuaded by this argument. As the Federal Circuit made clear in Two-TVay ]vfedia Ltd. v. Comcast Cable Communications, the improvement must be a technical one. See Two- Way Media Ltd. v. Comcast Cable Comm., LLC, 874 F.3d 1329, 1338-39 (Fed. Cir. 2017) (reciting an abstract idea performed on generic computer and network components that operate according to their ordinary functions does not contain an inventive concept). Here, claim 1 does not recite a technical improvement tied to a specific apparatus that solves a technical problem in the vehicle arts. Instead, the claim is merely directed to data collection and analysis in order to "determin[ e] driver behavior based on the data acquired from the vehicle." Spec. 1, 11. 10-11. Appellant has not provided any specificity regarding any particular inventive technology associated with the steps in the claim. The computer elements described in the Specification and claim (e.g., "onboard computer," "processor," "display") appear to function in a conventional manner to gather data, execute program instructions and operations, and output results. Appellant does not specifically address the Examiner's position that the additional claim elements "are generic, well-known, and conventional computer elements[,] and 'detecting ... ', 'capturing', and 'transmitting' data via generic sensors are generic, well-known, and conventional computing functions." Final Act. 4. Appellant's reliance on McRO, Inc. v. Bandai Namco Games America Inc. (see Reply Br. 8) is unavailing because the 7 Appeal2018-004580 Application 14/930,338 instant claim does not recite an improvement to a particular computer technology. See McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314--15 (Fed. Cir. 2016) (finding claims not abstract because they "focused on a specific asserted improvement in computer animation"). Appellant argues that the claimed method "could not reasonably be performed by a human being as alleged by the Examiner." Appeal Br. 11. Even assuming this to be the case, this would not be dispositive of patent eligibility because "the inability for the human mind to perform each claim step does not alone confer patentability." Fair Warning IP, LLC v. Iatric Sys. Inc., 839 F.3d 1089, 1098 (Fed. Cir. 2016). According to Appellant, "the conventional approach to conducting a review of a driving event with the driver takes place several days after the event's occurrence ... , thereby significantly reducing the efficacy of [a] driver review meeting." Appeal Br. 11. Appellant asserts that "[t]he claims enable the analysis to be performed, and results to be provided, more efficiently." Reply Br. 8; see also id. at 9 ( asserting that "[ t ]he claimed methods/systems are directed to a technological solution for efficient driver behavior analysis"). This argument is unconvincing. Although the use of the computer elements may improve the efficiency of driver behavior analysis, "merely adding computer functionality to increase the speed or efficiency ... does not confer patent eligibility on an otherwise abstract idea." Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015); see also LendingTree, LLC v. Zillow, Inc., 656 F. App'x 991, 997 (Fed. Cir. 2016) (holding ineligible claims to a computerized method of speeding up a loan- application process). Moreover, 8 Appeal2018-004580 Application 14/930,338 [i]n order for the addition of a machine to impose a meaningful limit on the scope of a claim, it must play a significant part in permitting the claimed method to be performed, rather than function solely as an obvious mechanism for permitting a solution to be achieved more quickly, i.e., through the utilization of a computer for performing calculations. SiRF Tech, 601 F.3d at 1333. Here, nothing in claim 1 involves a computer functioning in anything other than a conventional manner to collect data inputs, process the data inputs using a mathematical algorithm, and output a result. Although the computer may provide an improved ( e.g., faster, more efficient) way to execute the abstract idea, such an improvement does not make the abstract idea patent-eligible. For the above reasons, the recited elements, considered individually and as an ordered combination, do not constitute an "inventive concept" that transforms independent claim 1 into patent-eligible subject matter. See Alice, 134 S. Ct. at 2355. Accordingly, we sustain the rejection of claim 1, and of claims 2-20 falling therewith, under 35 U.S.C. Â§ 101 as directed to patent-ineligible subject matter. DECISION The Examiner's decision rejecting claims 1-20 is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 9