Ex Parte Brist et al

Patent Trial and Appeal BoardNov 29, 2018

13834675 (P.T.A.B. Nov. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/834,675 03/15/2013 104333 7590 12/03/2018 International IP Law Group, P.L.L.C. 13231 Champion Forest Drive Suite 410 Houston, TX 77069 FIRST NAMED INVENTOR Gary A. Brist 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. P54436 6664 EXAMINER CHARI OU!, MOHAMED ART UNIT PAPER NUMBER 2857 NOTIFICATION DATE DELIVERY MODE 12/03/2018 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): eofficeaction@appcoll.com Intel_Docketing@iiplg.com inteldocs _ docketing@cpaglobal.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GARY A. BRIST 1 and Kevin J. Daniel Appeal2017-010959 Application 13/834,675 Technology Center 2800 Before MARK NAGUMO, DONNA M. PRAISS, and BRIAND. RANGE, Administrative Patent Judges. NAGUMO, Administrative Patent Judge. DECISION ON APPEAL Intel Corporation ("Brist") timely appeals under 35 U.S.C. Â§ 134(a) from the Final Rejection2 of all pending claims 1, 3, 5-11, 13, 15-21, 23, and 25-30. We have jurisdiction. 35 U.S.C. Â§ 6. We reverse. 1 The applicant under 37 C.F.R. Â§ 1.46, and hence the appellant under 35 U.S.C. Â§ 134, is the real party in interest, identified as Intel Corporation. (Appeal Brief, filed 3 January 2017 ("Br."), 2.) 2 Office Action mailed 21 March 2016 ("Final Rejection"; cited as "FR"). Appeal2017-010959 Application 13/834,675 A. Introduction 3 OPINION The subject matter on appeal relates to "techniques for mitigating time-varying magnetic noise received by a magnetic receiver." (Spec. 1 [0001].) The '675 Specification explains that "[m]agnetic sensors are often integrated with the platforms of computing devices and are used as compasses to measure or detect heading information, e.g., information relating to the direction the computing device is pointing." (Id. at [0002].) According to the Specification, noise, which may be time-varying, arises from interference induced by the platforms as well as from the environment in which the device is operating. The Specification teaches that noise "may impede the proper functioning of the sensors." (Id.) Moreover, "[t]he algorithms to determine heading and accuracy can be complex and require large number of sensor readings." (Id.) The Specification discloses devices (independent claim 1 ), methods of computing the magnetic heading of the device (independent claim 11 ), and non-transitory, machine-readable media containing executable instructions for conducting the methods (independent claim 21 ). The disclosed inventions are said to improve the efficiency of the determination of the magnetic heading. (Id. at 2 [0011].) The improvements are said to arise, at least in part, by optimizing the number of samples used to compute the sensor reading based on the noise level received by the sensor, the heading accuracy desired, and the confidence level desired for a 3 Application 13/834,675, Computing a magnetic heading, filed 15 March 2013. We refer to the '"675 Specification," which we cite as "Spec." 2 Appeal2017-010959 Application 13/834,675 particular use. (Id. at [0012].) In the words of the Specification, "[r]educing the number of samples used to calculate the magnetic heading improves the computational efficiency of the averaging process." (Id.) The Specification explains that the magnetic field measured by the magnetic sensor, Bsensar, has contributions from three fields, the magnetic field induced by the platform, Bptatfarm, the magnetic field due to the earth, Bearth, and any contribution from magnetic sources external to the platform, Bambient- Thus, Bsensor = Bptatjorm + [Bearth + Bambient]R, in which Bsensar and Bptatfarm are in platform coordinates, Bearth and Bambient are in world coordinates, and R is a rotational translation operator that relates the two coordinate systems. (Id. at 3--4 [0015].) The true heading of the platform can be determined from the equation (id. at 4 [0017]). Magnetic North = arctan (BearthY), BearthX The effect of noise on the magnetic signal output by the magnetic sensor is illustrated in Figures 1 and 2, below. {Figure 1: sensor signal 102 without noise has centroid 108 at the origin, (0,0)} {Figure 2: Bplatfarm-induced centroid shift 208 and time varying noise shift 212} 3 Appeal2017-010959 Application 13/834,675 Figure 1 illustrates the output 1024 of a stationary magnetic sensor across all orientations of the sensor (here, rotated about the z-axis, perpendicular to the page) in a constant magnetic field. (Spec. 3 [0014].) The x-axis 104 represents counts in the x-direction, while the y-axis 106 represents counts in the y-direction. (Id.) The sensor generates centroid 108, centered at the origin, (x,y) = (0,0). (Id.) In the words of the Specification, "[t]he magnetic heading can be computed as a function of the position of the sensor output along the centroid in relation to the centroid center." (Id.) As shown in Figure 2, magnetic field source, Bptatform, fixed in the platform, is said to produce "a constant shift across all orientations" (id. at 4 [0019]), resulting in a shift of the origin of the centroid, as indicated by vector 208. Time-varying noise at the sensor is said to add noise to the sensor output 206, "which influences the sensor output position along the centroid, as shown by the rectangle 210." (Id. at 5 [0020].) For a fixed orientation of the magnetic sensor, the noise-induced changes of the sensor output 206 and of the centroid center will be paired, such that the shift of the true centroid center will be shifted as indicated by rectangle 212. (Id.) By averaging the sensor output 206, an improved computation of the magnetic heading may be obtained, and, if the sensor is stationary, the effect of the noise on the position of the centroid may also affect the heading calculation. (Id.) 4 Throughout this Opinion, for clarity, labels to elements are presented in bold font, regardless of their presentation in the original document. 4 Appeal2017-010959 Application 13/834,675 The Specification teaches further that a noise threshold can be determined based on the desired accuracy of the computed magnetic heading, according to following equation: Noise Threshold= 2 sin e Â· Sensor Magnitude, where e is the desired heading accuracy in degrees. (Id. at 10 [0036].) Similarly, when the sensor is stationary, a threshold signal magnitude may be calculated according to the equation . . Measured Noise Szgnal Magnztude Threshold= . 8 . 2 Sill (Id. at [0037].) The sample size N necessary to obtain a desired heading accuracy with a given confidence at a given Sensor Magnitude and a given Measured Noise level is computed according to the following equation: ( 1-log(a) ) N = ln(l + Sensor Magnitud~ Â· Sine , Measured Noise where a= 1 - confidence percentage. (Id. at 11 [0039].) (Eq. 4) Figure 4, reproduced below, shows the role of a Signal Magnitude Threshold in a magnetic measurement in the presence of magnetic noise. I y- 404 412 Ndise Level Acceptable Without i-'wer,igir,g -Â· Â·-"- 402 {Figure 4: when averaging is needed to compute the magnetic heading} 5 Appeal2017-010959 Application 13/834,675 In Figure 4, the x-axis represents the signal magnitude 402, while the y-axis represents the noise 404. (Id. at 10-11 [0038].) Radial lines 406 bound the sector defined by the desired heading accuracy e. Vertical line 408, which intersects radial lines 406, represents the Signal Magnitude Threshold along axis 402. (Id.) The height of line 408 represents the measured noise at that signal magnitude. (Id.) If the measured signal magnitude is less than the Signal Magnitude Threshold, as indicated by arrow 410, signal averaging is required to determine the "applied output signal" (id.), which is also referred to as the "applied sensor output," i.e., "the sensor output data that is actually used in the heading calculation" (id. at 5 [0021 ]). The number of samples N required to meet the Signal Magnitude Threshold at a desired confidence level is given by Eq. 4, supra. If the measured signal magnitude is greater than the Signal Magnitude Threshold, as indicated by arrow 412, signal averaging is not required, and the "applied sensor output" can simply be the value of a single measured signal. (Id. at 11 [0038].) Thus, the signal processing for determining the magnetic heading 214, i.e., the orientation of the magnetic sensor, is said to be optimized, leading to increased efficiency in the calculations, time, and power consumption of the unit. (Id. at 2 [0012].) Claim 1 is representative and reads: A computing device, comprising: a processor; a magnetic sensor to collect sensor output data; a heading computation engine to compute a magnetic heading based on the sensor output data, the heading computation engine comprising: 6 Appeal2017-010959 Application 13/834,675 logic to measure a level of noise [ 404] in the sensor output data [206]; logic to compute a threshold noise level based on a specified heading accuracy [ BJ and compare the level of noise to the threshold noise threshold to determine whether to average the sensor output data; logic to determine an applied sensor output based on the sensor output data; and logic to compute a magnetic heading [214] based, at least in part, on the applied sensor output and provide the magnetic heading to an application to be executed by the processor. (Claims App., Br. 18; some formatting, and bracketed labels to parameters illustrated in the Figures added.) The Examiner maintains the following ground of rejection 5, 6, 7 : Claims 1, 3, 5-11, 13, 15-21, 23, and 25-30 stand rejected under 35 U.S.C. Â§ 101 as being drawn to judicially excepted subject matter. 5 Examiner's Answer mailed 19 June 2017 ("Ans."). 6 Because this application was filed before the 16 March 2013, effective date of the America Invents Act, we refer to the pre-AIA version of the statute. 7 The principal rejection under 35 U.S.C. Â§ 103(a) has been withdrawn (Ans. 2), and no mention is made of the subsidiary rejections for obviousness. We conclude that all obviousness rejections have been withdrawn. 7 Appeal2017-010959 Application 13/834,675 B. Discussion The Board's findings of fact throughout this Opinion are supported by a preponderance of the evidence of record. The standard procedure for determining whether a claim is directed to a judicial exception to patent eligible subject matter under 35 U.S.C. Â§ 101 is the two-step framework outlined in Alice. 8 In step one, a determination is made as to whether the claims are directed to an "abstract idea," i.e., a building block of human ingenuity. Alice, 134 S. Ct. at 1354. However, as the Federal Circuit has explained "claims are patent eligible under Â§ 101 'when a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect."' Thales Visionix Inc. v. United States, 850 F.3d 1343, 1348--49 (Fed. Cir. 2017), quoting Diamond v. Diehr, 450 U.S. 175, 192 (1981). Generally, because "[t]he Supreme Court has not established a definitive rule to determine what constitutes an 'abstract idea' sufficient to satisfy the first step of the Mayo/Alice inquiry," Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1334 (2016), it is instructive "to compare claims at issue to those claims already found to be directed to an abstract idea in previous cases." Id. Importantly, the Federal Circuit has emphasized that step one is not a mere formality-it may be dispositive. Id. at 1339 ("Because the claims are not directed to an abstract idea under step one of the Alice analysis, we do not need to proceed to step two of that analysis."). 8 Alice Corp. Pty. Ltd. v. CLS Bank Int'!., 134 S. Ct. 2347 (2014). 8 Appeal2017-010959 Application 13/834,675 If, on completion of step one, the claims are determined to be directed to an abstract idea, in step two, the claims are analyzed to determine whether they contain an "inventive concept sufficient to transform the abstract idea into a patent-eligible application" of that abstract idea. Alice, 134 S. Ct. at 2357 (internal quotes and citation omitted). Both individual elements and combinations of elements, which must be other than the abstract ideas themselves, 9 must amount to "significantly more" than the abstract idea itself, such that a practical application of the abstract idea is claimed. However, if all the non-abstract elements, considered individually and as the "ordered combination" recited in the claim, are well-understood, routine, or conventional in the art, and they do not, for example, effect an improvement in the technology or technical field, then they are "not 'enough' to transform an abstract idea into a patent-eligible invention." Alice, 134 S. Ct. at 2359- 60. Following the general Alice two-step framework, the Examiner determines that the "logic to" recitations that characterize the "heading computation engine" in claim 1 are directed to the abstract ideas of mathematical operations, as illustrated in the Specification. (FR 2, last full para.) The Examiner determines further that the magnetic sensor provides only the "insignificant extra-solution activity of data gathering." (Id., para. bridging 2-3.) Similarly, the heading computation engine, which may be a processor, is considered to "perform the basic computer function[ s] of receiving the sensor data and calculating a mathematical operation are not 9 Berkheimer v. HP Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (denying reh' g en bane) ("It is clear from Mayo that the "inventive concept" cannot be the abstract idea itself."). 9 Appeal2017-010959 Application 13/834,675 sufficient to transform" the abstract ideas into a practical application. The final recitation, to "provide the magnetic heading to an application to be executed by the processor" does not, in the Examiner's judgment, "limit the judicial exception in any practical way." (Id.) The Examiner supplements these determinations by citing, in the Examiner's Answer, cases such as Electric Power Group 1Â°, holding that collecting information, analyzing it, and displaying certain results are, without more, abstract ideas. Brist urges that the recitation of the physical components-the magnetic sensor and the processor-and the nature of the data gathered and the novel method of analysis establish that the claim is directed to a practical application of whatever abstract ideas are recited, and establish that the claims should be deemed directed to patentable subject matter. (Br. 9.) Brist argues further that "the claims recite limitations that improve the direction finding capabilities of mobile devices," and that "the recited techniques require specific types of hardware configured in a novel way to provide the advantages of the recited subject matter." (Id. at para. bridging 10-11, citing Alice, 134 S. Ct. at 2355.) In the Reply11, Brist likens the appealed claims to the claims directed to methods of calculating absolute positions of GPS receivers, found to be directed to patent-eligible subject matter in SiRF Technol. Inc. v. Int'! Trade Comm 'n, 601 F.3d 1319 (Fed. Cir. 2010). 10 Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (claims directed to an abstract idea where "[t]he focus of the asserted claims ... is on collecting information, analyzing it, and displaying certain results of the collection and analysis.") 11 Reply Brief filed 21 August 2017 ("Reply"). 10 Appeal2017-010959 Application 13/834,675 A difficulty with the Examiner's analysis is the absence of comparison of the scope of the appealed claims with the claims at issue in the cited cases. Such a comparison is important because the facts of each case provide the context for the legal holding. As the Federal Circuit has explained, "courts must be careful to avoid oversimplifying the claims by looking at them generally and failing to account for the specific requirements of the claims." McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299, 1313 (Fed. Cir. 2016) (internal quotation and citation omitted.) The claims in Electric Power Group, for example, were extremely broad. The data collected included time stamped synchronized phasor [waveform] measurements of the power grid, data from other power system data sources, and data from a plurality of non-grid data sources. Electric Power Group, 830 F.3d at 1351-52 (claim 12 of U.S. Patent No. 8,401,710). Real time events in a variety of parameters "indicative of events, grid stress, and/or grid instability, over the wide area" were detected and analyzed. Id. at 1352. And a "composite indicator of reliability that is an indicator of power grid vulnerability" was derived. Id. The scope of the potential exclusion, emphasized by the generality of the supporting description, supported the conclusion that the claims in Electric Power Group were directed to abstract ideas. In contrast, the appealed claims require detection of a single type of data, namely, magnetic data, and the data are analyzed for strength and direction, and noise. The data are then processed to determine the magnetic heading of the sensor. Although at first glance, the "logic to" recitations may be disconcertingly broad, in the context of the claim read as a unitary whole, they are merely functional recitations of elements of a "heading 11 Appeal2017-010959 Application 13/834,675 computation engine." Such functional recitations have been approved, with the caution that they may be quite broad. In re Swinehart, 439 F.2d 210,213 (CCPA 1971) ("'Functional' terminology may render a claim quite broad. By its own literal terms a claim employing such language covers any and all embodiments which perform the recited function.") Thus, the appealed claims are more similar to those directed to the system and method for an inertial tracking system that determines the orientation of an object, found to be patent-eligible in Thales, 850 F.3d at 1345--46. Although abstract ideas are employed, they are employed to a functional end. In this aspect, the claims are also similar to the claims at issue in McRO, which were found to be "limited to rules with specific characteristics. McRO, 822 F.3d at 1313. The appealed claims also compare favorably with those at issue in SiRF, where the Federal Circuit determined that "the presence of the GPS receiver places a meaningful limit on the scope of the claims." SiRF, 601 F.3d at 1332-33. The machine imposes such a limit in SiRF, the court explained, because it plays "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." (Jd.) 12 12 Notably (the parties in SiRF do not appear to have raised the issue), the court was not troubled by the absence of the claim requiring that anything in particular be done with the estimates of absolute position and absolute time yielded by the claimed method. But the determination of absolute position and time on the surface of the earth, and the determination of orientation on the surface of the earth, are not merely abstract calculations arising from artificial constructs. 12 Appeal2017-010959 Application 13/834,675 Thus, under step one of the Alice framework, claim 1 is not directed to an abstract idea. Consideration of the elements of the analysis in step two of the Alice framework is not necessary, but such considerations strengthen the conclusion that the claims are not directed to an abstract idea. Although the Examiner characterizes the individual steps as well-understood, routine, and conventional, the Examiner has not favored us with evidence and analysis demonstrating that the recited steps, "considered as an ordered combination," were conventional in the art of magnetic heading analysis. The Federal Circuit's remarks in BASCOM, 13 in which the court found that "the claims and their specific limitations do not readily lend themselves to a step-one finding that they are directed to a nonabstract idea," 827 F.3d at 1349, are particularly relevant here: we disagree with the district court's analysis of the ordered combination of limitations. In light of Mayo and Alice, it is of course now standard for a Â§ 101 inquiry to consider whether various claim elements simply recite "well- understood, routine, conventional activit[ ies]." Alice, 134 S. Ct. at 2359. The district court's analysis in this case, however, looks similar to an obviousness analysis under 35 U.S.C. Â§ 103, except lacking an explanation of a reason to combine the limitations as claimed. The inventive concept inquiry requires more than recognizing that each claim element, by itself, was known in the art. As is the case here, an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces. Id. at 1349--40. 13 BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). 13 Appeal2017-010959 Application 13/834,675 In the present case, the Examiner has not directed our attention to evidence of record that noise was used----or would have been obvious to use-as a parameter in the analysis of calculating the magnetic heading. 14 Thus, the step two analysis, which requires findings of fact regarding the state of the art and the steps recited in the claims, is also flawed by harmful error. We conclude that Brist has shown harmful error in the appealed rejection, which we therefore reverse. C. Order It is ORDERED that the rejection of claims 1, 3, 5-11, 13, 15-21, 23, and 25-30 is reversed. REVERSED 14 See Berkheimer v. HP Inc., 890 F.3d at 1374: "to the extent it is at issue in the case, whether a claim element or combination is well-understood, routine, and conventional is a question of fact" ( emphasis added). 14