Ex Parte Gautier et al

Patent Trial and Appeal Board

Aug 11, 2017

12531605 (P.T.A.B. Aug. 11, 2017)

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.
12/531,605 12/02/2009 Antoine Gautier 40176/00101 1228
30636 7590 08/14/2017
FAY KAPLUN & MARCIN, LLP
150 BROADWAY, SUITE 702
NEW YORK, NY 10038
EXAMINER
DAVIS, SHARON M
ART UNIT PAPER NUMBER
3646
MAIL DATE DELIVERY MODE
08/14/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANTOINE GAUTIER and DAVID DUREY
____________

Appeal 2015-007436
Application 12/531,605
Technology Center 3600
____________

Before THOMAS F. SMEGAL, LISA M. GUIJT, and ERIC C. JESCHKE,
Administrative Patent Judges.

JESCHKE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Antoine Gautier and David Durey (“Appellants”)1 seek review under
35 U.S.C. § 134(a) of the Examiner’s decision, as set forth in the Final
Office Action dated September 16, 2014 (“Final Act.”), rejecting claims 9–
11, 16, and 18. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm and enter a new ground of rejection pursuant to our
authority under 37 C.F.R. § 41.50(b).

1 Appellants identify AREVA NP as the real party in interest. Appeal
Br. 2.
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BACKGROUND
The disclosed subject matter “relates to a method for determining the
three-dimensional power distribution of the core of a nuclear reactor.” Spec.
1, ll. 9–11. Claims 9, 16, and 18 are independent. Claim 9 is reproduced
below, with bracketed letters added to identify each clause:
9. A method for determining a three-
dimensional power distribution of a core of a
nuclear reactor implemented by a programmed
device including a processor and a non-transitory
computer readable storage medium, the core
including a plurality of fuel assemblies, by using a
set of neutron flux measurement detectors disposed
outside a vessel of the reactor and a set of probes
measuring a temperature of a coolant at an outlet of
the fuel assemblies, the method comprising the
following steps:
[a] determining, by the processor, a first
three-dimensional power distribution by using a
neutronic calculation code instantaneously solving
a diffusion equation and updating an isotopic
balance of the core during fuel depletion, from
values of reactor operation parameters, a neutronic
calculation being carried out during a time step that
is less than one minute;
[b] monitoring measurements generated by
the neutron flux measurement detectors;
[c] determining, by the processor, a new
three-dimensional power distribution by adjusting
the first three-dimensional power distribution with
the measurements issued by the neutron flux
measurement detectors disposed outside the reactor
vessel and the temperature measurement probes;
and
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[d.i] continuously controlling, by the
processor, the neutronic calculation, the control
comprising the following steps:
[d.ii] calculating, at time step ti, a
current three-dimensional power distribution
of the core from values of parameters
characterizing a current operation of the
reactor,
[d.iii] calculating, at time step ti, a new
three-dimensional power distribution after
adjusting at least one parameter
characterizing the current operation of the
reactor to minimize a discrepancy between a
calculation and a measurement of an axial
power imbalance averaged over a set of
assemblies at a periphery of the core, and
[d.iv] using the new power distribution
issued from the previous calculation as an
initial condition of the neutronic calculation
at a following time step ti+1.

REJECTION2
Claims 9–11, 16, and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Impink (US 4,774,049, issued Sept. 27, 1988) and Lin
(US 5,225,147, issued July 6, 1993).

2 The Examiner rejected claims 9–11, 16, and 18 under 35 U.S.C.
§ 102(b) as anticipated by Impink (US 4,774,049, issued Sept. 27, 1988).
See Final Act. 3–7. In the Answer, the Examiner withdraws this rejection.
See Ans. 7.
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DISCUSSION
Appellants assert the patentability of the three independent claims—
claims 9, 16, and 18—based on the same arguments and do not provide
separate arguments for any dependent claims. Appeal Br. 6–12.3 We select
claim 9 as representative, with the remaining claims standing or falling with
claim 9. See 37 C.F.R. § 41.37(c)(1)(iv) (2014).
For claim 9, the Examiner relied on Impink for certain limitations but
stated that “Impink does not explicitly disclose the time interval for
successive neutronic calculations nor the use of current reactor conditions to
minimize discrepancies between calculated and actual values.” Final Act. 9.
The Examiner found, however, that Lin discloses these aspects because:
Lin teaches successive calculations at time intervals of less than
0.25 seconds (column 2, line 63) and “providing time-dependent
neutron diffusion equations coupled to delayed neutron precursor
concentrations . . . sensing the monitored parameters, and
determining the core neutronic parameters in response to the
sense parameters and the provided two group neutron diffusion
equations in constant time steps” (column 2 lines 52–63).
Id. According to the Examiner, “[o]ne of ordinary skill in the art at the time
of the invention would have been motivated to combine the successive,
normalized calculations of Lin with the method of Impink to determine core
neutronics in response to rapid transient conditions in a real-time
environment.” Id. at 9–10 (citing Lin, col. 2, ll. 15–17).

3 Any citation to pages 5 through 12 of the Appeal Brief refers to the
substitute argument section filed on March 16, 2015. Citations to any other
page of the Appeal Brief refer to the version filed on March 13, 2015.
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Clause a of Claim 9
Appellants argue that “although Impink further discloses a step of
determining a first power distribution,” as recited in clause a, “Impink does
not disclose or suggest that the first power distribution is obtained by using a
neutronic calculation code solving a diffusion equation and updating an
isotopic balance of the core during fuel depletion, from values of reactor
operation parameters,” as further recited in clause a. Appeal Br. 7.
Appellants state that “[t]he Examiner has previously cited to a variety of
passages in Impink that purportedly disclose this feature.” Id. Below, we
address various limitations in clause a and the aspects of the prior art relied
on by the Examiner.
First, we address the limitation “determining, by the processor, a first
three-dimensional power distribution by using a neutronic calculation code
instantaneously.” In the Office Action, the Examiner quoted this language
and stated “(real time, [Impink,] column 3, line 66 though column 4, line
2)”). Final Act. 8–9. Appellants argue that “this disclosure of Impink has
no relevance nor does this disclosure equate to a neutronic calculation code
being used, much less instantaneously.” Appeal Br. 7. Appellants continue:
In contrast, this disclosure of Impink only relates to the method
of Impink being implemented on-line and in real time in which
the on-line implementation is carried out by the measurements
provided by thermocouples. [Impink,] col. 9, ll. 65–66. That is,
no neutronic calculation is being used in Impink.
Id.
The Examiner responds that “although Impink does not explicitly
recite [‘]neutronic calculation code,’ Impink discloses a computer-based
system that calculates a neutron flux map of a reactor.” Ans. 7. According
to the Examiner, “[t]he computer [of Impink] necessarily contains code and
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because the computer carries out a neutronic calculation, i.e. the generating a
power distribution map from measured values, the code in the computer in
Impink can be said to be a ‘neutronic calculation code.’” Id. (citing Impink
col. 8, ll. 18–28 and 53+).
We are not apprised of error in the finding that the relied-upon aspects
of Impink (see Final Act. 8–9; Ans. 7) disclose the limitation at issue. With
this argument, Appellants recite aspects of the limitation at issue and assert
that Impink does not disclose that limitation, but do not show error in the
Examiner’s findings. See 37 C.F.R. § 41.37(c)(1)(iv) (“A statement which
merely points out what a claim recites will not be considered an argument
for separate patentability of the claim.”); see also In re Lovin, 652 F.3d
1349, 1356–57 (Fed. Cir. 2011) (holding that “the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art”).
Second, we turn to the limitation “solving a diffusion equation and
updating an isotopic balance of the core during fuel depletion, from values
of reactor operation parameters” in clause a. In the Office Action, the
Examiner quoted this language and cited column 4, line 60 to column 5, line
3 of Impink. See Final Act. 9. Appellants argue that “this portion of Impink
does not mean that a neutronic calculation code is used by solving a
diffusion equation and updating an isotopic balance of the core during fuel
depletion from values of reactor operation parameters.” Appeal Br. 7.
The Examiner responds that “although Impink does not explicitly
recite ‘solving a diffusion equation,’ such a calculation is inherent to the
calculation of a three-dimensional power distribution map as in Impink.”
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Ans. 7. The Examiner then quotes column 2, line 35 to 39 of Impink and
states that “[a] skilled nuclear artisan would readily recognize that Impink’s
disclosure of a ‘three dimensional core power distribution’ is the result of
solving the neutron transport equation that is derived from the Boltzmann
transport equation” and that “[i]n the neutronic context, the term ‘transport’
is equivalent to diffusion.” Id. at 7–8. According to the Examiner,
“Impink’s disclosure of ‘three dimensional core power distribution’ must
necessarily be a disclosure of the claimed ‘solving a diffusion equation.’”
Id. at 8.
We are not apprised of error in the finding that the relied-upon aspects
of Impink (see Final Act. 9; Ans. 7–8) disclose the limitation at issue. With
this argument, Appellants recite aspects of the limitation at issue and assert
that Impink does not disclose that limitation, but do not show error in the
Examiner’s findings. See 37 C.F.R. § 41.37(c)(1)(iv); see also Lovin, 652
F.3d at 1356–57.
The Examiner also addressed the limitation at issue in the Response to
Arguments section of the Office Action, stating “although Impink does not
explicitly recite ‘solving a diffusion equation,’ such a calculation is inherent
to the calculation of a power distribution map as in Impink.” Final Act. 2.
The Examiner then quoted column 2, lines 35 to 39 of Impink and column 8,
lines 31 to 35 of U.S. Patent No. 5,024,801 (“Impink II”4) and concluded,
“[t]herefore, Examiner submits that the conventional methodology for
determining reactor power distribution disclosed by [Impink] solves the
neutron diffusion equation as disclosed in [Impink II].” Id. at 2–3.

4 Like Appellants, we will refer to this patent as “Impink II.” See,
e.g., Appeal Br. 8.
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Addressing the Examiner’s position, Appellants state that the
Examiner “has further provided another citation from Impink and provides
[Impink II] to provide support that this feature [in clause a] of claim 9 is a
common methodology that has already been employed such as in the prior
art.” Appeal Br. 8 (citing Final Act. 2). Appellants contend that “there is no
connection from the ‘common use’ cited in Impink to the neutron transport
diffusion algorithms of Impink II.” Id.; see also Impink, col. 2, ll. 35–39
(“The methodologies both for ex-core neutron detector recalibration and for
synthesis of a detailed three dimensional core power distribution from
movable detector traces are well known in the art and are in common use.”
(emphasis added), cited at Final Act. 2). Appellants contend that “Impink II
does not provide the support for the recited feature in claim 9 since the
common use of Impink does not correspond to using neutron transport
diffusion algorithms as described in Impink II” because “Impink and Impink
II relate to solving power distributions based upon two fundamentally
different parameters.” Appeal Br. 8. According to Appellants, “Impink
relates to two and three dimensional nuclear reactor core power
distributions” (citing Impink, Abstract) whereas, “Impink II relates
exclusively to a one dimensional (axial) analytical model” (citing Impink II,
col. 5, ll. 14–26). Id.
The Examiner responds that “further support for Examiner’s assertion
of inherency can be found in [Impink II], which states ‘the current analytical
axial offset and axial pinch values are calculated using conventional
neutronics equations such as the one dimensional diffusion theory
algorithms, the one dimensional nodal algorithms or the one dimensional
neutron transport algorithms.’” Id. (quoting Impink II, col. 8, ll. 31–35).
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According to the Examiner, “[c]onversion of the one-dimensional analysis
of Impink [II] to three-dimensional analysis would require only the addition
of spatial variables and would not destroy the underlying Boltzmann
diffusion theory on which the core power distribution calculation of Impink
is founded.” Id.
We are not apprised of error in the Examiner’s further reliance on
Impink II (see Final Act. 2–3; Ans. 8) in support of the finding that Impink
(see Final Act. 9; Ans. 7–8) inherently discloses the limitation at issue—i.e.,
“solving a diffusion equation and updating an isotopic balance of the core
during fuel depletion, from values of reactor operation parameters.” As an
initial matter, we consider the Examiner’s discussion of Impink II as an
alternative and additional basis to support the finding that Impink discloses
the limitation at issue. For the reasons discussed above (see supra at p. 7
(first full paragraph)), Appellants have not shown error in the primary basis
for the finding that Impink discloses the limitation at issue.
As to the merits of the alternative basis, Appellants assert that “[t]hose
skilled in the art will understand that the further dimensional analyses does
not enable a simple transportation of one set of calculations into the other,
particularly from lesser dimensions [as in Impink II] into greater dimensions
[as in Impink] which is the case at hand as proposed by the Examiner”
(Appeal Br. 8), but Appellants do not support this argument with any
evidence. See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
(“Attorney’s argument in a brief cannot take the place of evidence.”).
Similarly, Appellants’ assertion that “[t]hose skilled in the art will clearly
and reasonably understand that the method of Impink and Impink II are very
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different from the present application” (Appeal Br. 8) is not supported by
evidence.
Third, we turn to the limitation “from values of reactor operation
parameters, a neutronic calculation being carried out during a time step that
is less than one minute” in clause a. Appellants argue that, in Impink, “[t]he
information relative to the first power distribution are determined
periodically and are stored in libraries (e.g., library 85. Impink; Fig. 5)” and
that “[t]he periodicity of determination of a flux map is typically once each
month.” Appeal Br. 9 (citing Impink, col. 9, ll. 56–58).
The Examiner responds that “while Impink does, as [Appellants]
allege[], disclose calculating a first power distribution from a reference value
in a library, Impink also discloses a first power distribution calculated from
measured reactor values.” Ans. 8. In support, the Examiner quotes from
column 8, lines 23 to 28, which provides, as emphasized by the Examiner,
“[i]n one embodiment of the present invention, the display comprises
deviations of the core power from reference values provided by the core flux
map which is periodically made or from reference values from a previous
thermocouple-generated power distribution.” Id.
To the extent Appellants’ argument asserts error in the Examiner’s
findings regarding the language “from values of reactor operation
parameters,” we are not apprised of error for the reasons stated by the
Examiner, as set forth above. Appellants do not address these statements by
the Examiner.
To the extent Appellants’ argument asserts error in the Examiner’s
findings regarding the language “a neutronic calculation being carried out
during a time step that is less than one minute,” we are not apprised of error
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because nonobviousness cannot be established by attacking references
individually when the rejection is based on a combination of prior art. See
In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, by arguing
that Impink alone does not disclose this limitation, Appellants do not
address the rejection as articulated, in which the Examiner relies on the
combination of Impink and Lin. See Final Act. 9–10.5
Clauses d.i to d.iv of Claim 9
We turn now to Appellants’ arguments regarding clauses d.i to d.iv of
claim 9. First, Appellants state, “[i]n view of the above [arguments
regarding clause a], as there is no disclosure of the use of a neutronic code in
Impink that solves diffusion equations, it follows that Impink does not
disclose or suggest a continuous controlling, by a processor of said neutronic
calculation and of the steps for implementing said controlling.” Appeal Br.
9. For the reasons discussed in the prior section, however, we are not
apprised of error based on the arguments regarding clause a.
Appellants also argue that “the portion of Impink relied upon for this
feature of claim 9 has no relevance with a continuous control of a neutronic
code” but instead “is focused on the recording of current values of the 3D
core burnup distribution.” Id. (citing Impink col. 5, ll. 19–33); see also
Final Act. 9 (citing Impink col. 5, ll. 19–33 for clause d.i).
We are not apprised of error based on this argument. Appellants
paraphrase the language of clause d.i and state that the relied-upon portion of

5 We acknowledge that this argument was provided in a section
asserting error in the now-withdrawn rejection of claims 9–11, 16, and 18 as
anticipated by Impink. See Appeal Br. 6–9.
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Impink “has no relevance” but do not sufficiently explain why. See
37 C.F.R. § 41.37(c)(1)(iv); see also Lovin, 652 F.3d at 1356–57.
Second, Appellants argue that “Impink and Lin do not disclose or
suggest the above recited step for continuously controlling the neutronic
calculation and its substeps”—i.e., clauses d.i to d.iv. Appeal Br. 11; see
also Reply Br. 3 (asserting that “the continuous control recited in claim 9
with its substeps are not disclosed or suggested in the cited references and in
the prior art of record”).6 Appellants contend that “[t]his continuous
controlling step of claim 9 is an iterative process that is carried out in
parallel with the reconstruction process (i.e., the determining steps of claim
9 [i.e., clauses a and c]) and is activated with the same periodicity as that of
the reconstruction process.” Appeal Br. 11. According to Appellants, “the
method for neutronic calculation as recited in claim 9 including adjustment
of the neutronic calculation based on measurements and continuous control
are carried out at each time step lower than one minute” and “[s]uch a
combination of steps as recited in claim 9 is respectfully submitted as not
being disclosed or suggested by D1 and D2, whether taken alone or in
combination.” Id. at 12.7
The Examiner states that “Impink clearly discloses a reactor core
power distribution calculation that occurs in real-time, i.e. continuously, in a

6 We note that Appellants also argue that Impink alone does not
disclose clause d.iii. Appeal Br. 10. This argument, however, was provided
in a section asserting error in the now-withdrawn rejection of claims 9–11,
16, and 18 as anticipated by Impink. See Appeal Br. 6–9. In the Rejection
on appeal, the Examiner relies on Impink and Lin, in combination, to
address clause d.iii. See Final Act. 9–10; Merck, 800 F.2d at 1097.
7 We understand “D1 and D2” to refer to Impink and Lin.
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processor, the basis for [Appellants’] allegation that Impink does not
disclose a step of ‘continuously controlling, by the processor, the neutronic
calculation.’” Ans. 9. The Examiner also states, “Impink discloses the
adjustment step of the claim by stating ‘local nuclear power values derived
from the refined and modified three dimensional synthesis application . . . .’”
Id. (citing Impink, col. 5, ll. 19–33).
As an initial matter, we agree with Appellants’ implicit contention
that the period of time between “time step ti” (in clauses d.ii and d.iii) and
“time step ti+1” (in clause d.iv) are the same “time step” recited in clause a.
We are not apprised of error, however, based on Appellants’ argument.
Here, the Examiner relies on, inter alia, (1) the disclosure of “time interval
between successive syntheses” in column 5, line 25 of Impink regarding
“neutronic calculation being carried out during a time step that is less than
one minute” in clause a, (2) the same disclosure of “successive syntheses” in
column 5, line 25 regarding limitation d.iv (reciting, inter alia, “at a
following time step ti+1”), (3) column 5, lines 19 to 33 of Impink regarding
limitation d.i, and (4) Lin as teaching “successive calculations at time
intervals of less than 0.25 seconds (column 2, line 63).” Final Act. 9. On
the record here, Appellants have not shown error in the determination that
the combination of Impink and Lin satisfies the “time step” aspects of
clauses d.i to d.iv.
In addition to the general argument that clauses d.i to d.iv are not
disclosed in the prior art (see, e.g., Appeal Br. 11), in the Reply Brief,
Appellants argue that:
performing a calculation in real-time and performing a
controlling step are two wholly separate and distinguishable
operations. Specifically, Impink merely provides a measuring
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and monitoring capability. In contrast, claim 9 recites a
functionality that performs more than a simple measuring and
monitoring operation. Specifically, the calculation is performed
using a basis that is determined from the recited substeps. Impink
provides no such disclosure as whatever conditions and
information is measured is used in the calculations performed
therein. Lin also does not disclose or suggest such a control
operation as recited in claim 9. In its entirety, Lin only describes
comparable measuring and monitoring operations as disclosed in
Impink.
Reply Br. 3.
We are not apprised of error in the finding that the relied-upon aspects
of Impink and Lin (see Final Act. 9–10; Ans. 9) disclose the limitations at
issue. With this argument, Appellants paraphrase aspects of the limitations
at issue and assert that the prior art does not disclose those limitations, but
do not show error in the Examiner’s findings. See 37 C.F.R.
§ 41.37(c)(1)(iv); see also Lovin, 652 F.3d at 1356–57. Moreover,
Appellants argue the references individually rather than addressing the
combination proposed. See Final Act. 9–10 (relying on Impink and Lin
regarding clauses d.i to d.iv); Merck, 800 F.2d at 1097 (“Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references.”).
Although we agree with Appellants that a “real-time” calculation is
not necessarily the same as “continuously controlling” a calculation (Reply
Br. 3 (discussing Ans. 9)), here, we determine that Appellants have not
shown error in the findings that the relied-upon aspects of the prior art
disclose clauses d.i to d.iv. See Final Act. 9–10; Ans. 9. For example, we
note that the portion of Impink relied on by the Examiner regarding clause
d.i (column 5, lines 19 to 33 (Final Act. 9)), does not use the term “real
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time.” Moreover, we note that, in the Answer, the Examiner discusses the
“adjusting” aspect of clause d.iii (Ans. 9 (quoting portions of Impink, col. 5,
ll. 19–33)), whereas, in the Reply Brief, Appellants do not address this
discussion, but rather essentially repeat a prior argument regarding, inter
alia, the “adjusting” aspect. Compare Reply Br. 3–4 (paragraph spanning
page break), with Appeal Br. 12 (first full paragraph). And that prior
argument essentially repeats portions of the Specification (see Spec. 16, ll.
1–24) and then asserts that “[t]his entire process which is recited in claim[] 9
. . . is clearly not disclosed or suggested by Impink and Lin.” On the record
here, Appellants have not shown error in the finding that the combination of
Impink and Lin satisfies clauses d.i to d.iv.
For the reasons set forth above, we sustain the rejection of
independent claim 9. Claims 10, 11, 16, and 18 fall with claim 9.

NEW GROUND OF REJECTION
We enter a new ground of rejection of claims 9–11, 16, and 18 under
35 U.S.C. § 101 as directed to patent-ineligible subject matter.
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
Corp. v. CLS Bank Int’l, 134 S. Ct. 2347, 2355 (2014) (citing Mayo
Collaborative Servs. v. Prometheus Labs, Inc., 132 S. Ct. 1289, 1294
(2012)). 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. (citing Mayo, 132
S. Ct. at 1296–97). If so, we secondly “consider the elements of each claim
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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, 132 S. Ct. at 1298, 1297). The Supreme
Court has described the second step 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, 132 S. Ct. at 1294).
Claim 9 is directed to a “method for determining a three-dimensional
power distribution of a core of a nuclear reactor implemented by a
programmed device” that uses data from various sources to perform certain
mathematical calculations. Appeal Br. 14–15 (Claims App.). Claim 18 is
directed to a similar method. Id. at 17. Claim 16 is directed to a “non-
transitory computer readable storage medium including a set of instructions
for determining a three-dimensional power distribution of a core of a nuclear
reactor implemented by a programmed device” in which the “set of
instructions [is] operable to” perform mathematical calculations similar to
those in claim 9. Id. at 16.
We determine, under the first step of the analysis, that each of
independent claims 9, 16, and 18 is directed to the abstract idea of receiving
data and, using recited algorithms, generating additional data.8 Our

8 Although the claims here recite the algorithms in words rather than
as mathematical formulas, the claims nevertheless recite algorithms. See In
re Grams, 888 F.2d 835, 837 n.1 (Fed. Cir. 1989) (“It is of no moment that
the algorithm is not expressed in terms of a mathematical formula. Words
used in a claim operating on data to solve a problem can serve the same
purpose as a formula.”).
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reviewing courts have held claims ineligible under § 101 when directed to
manipulating existing information, using algorithms, to generate additional
information. See Parker v. Flook, 437 U.S. 584, 585, 594–96 (1978)
(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 v. Benson, 409 U.S. 63, 71–72
(1972) (rejecting as ineligible claims directed to an algorithm for converting
binary-coded decimal numerals into pure binary form); Elec. Power Grp. 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.”).
Turning to the second step of the analysis, we determine that the
additional elements of claims 9, 16, and 18, individually and as ordered
combinations, do not transform the nature of the independent claims into
patent-eligible subject matter.
We first address certain language ostensibly limiting the use of the
recited steps to determining the “three-dimensional power distribution of a
core of a nuclear reactor.” Appeal Br. 14, 16, 17. Attempting to limit the
use of an abstract idea to a particular technological environment does not
render claims 9, 16, and 18 patent eligible because the limitations at issue do
not mitigate preemption concerns (see Alice, 134 S. Ct. at 2358) and do not
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transform the claims into patent-eligible applications of the abstract idea (see
Elec. Power, 830 F.3d at 1354).
We next address the term “programmed device,” as recited in each of
the independent claims. We determine that this term does not add anything
that transforms the nature of the claims from an abstract idea into a patent-
eligible invention because, for the reasons discussed below, the
“programmed device” includes a general-purpose computer. And as the
Supreme Court has explained, “the mere recitation of a generic computer
cannot transform a patent-ineligible abstract idea into a patent-eligible
invention.” Alice, 134 S. Ct. at 2358 (“Stating an abstract idea ‘while adding
the words “apply it”’ is not enough for patent eligibility.” (quoting Mayo,
132 S. Ct. at 1294)). The Specification here does not narrow the scope of
“programmed device,” but rather merely provides that the “programmed
device” implements the disclosed method (Spec. 8, ll. 7–8) and “disposes”
information from various sources (id. at 10, ll. 1–12).
The view that “programmed device” includes a general-purpose
computer is supported by Appellants’ statements on appeal. In the Office
Action, the Examiner found that Impink disclosed a “programmed device,”
citing column 8, lines 57–62. See Final Act. 8, 10, 12. Appellants agree
with that finding, stating, “[a]s noted by the Examiner, Impink discloses a
method for determining a three-dimensional power distribution of a core of a
nuclear reactor implemented by a programmed device including a processor
and a non-transitory computer readable storage medium.” Appeal Br. 7
(citing, inter alia, Impink, col. 8, ll. 57–62). The passage cited by both the
Examiner and Appellants provides that “the present invention comprises a
set of computational algorithms and computational control logic embodied
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in computer software which is executed on a digital computer.” Impink, col.
8, ll. 59–62 (emphasis added).
We next address that claim 16 recites a “non-transitory computer
readable storage medium including a set of instructions for determining a
three-dimensional power distribution of a core of a nuclear reactor” rather
than (as in claims 9 and 18) a “method for determining a three-dimensional
power distribution of a core of a nuclear reactor.” Appeal Br. 14, 16, 17
(emphasis added). The language shown with emphasis above in claim 16
does not affect our conclusion regarding step two. We determine that claim
16 is not “truly drawn to a specific computer readable medium, rather than
to the underlying method.” CyberSource Corp. v. Retail Decisions, Inc., 654
F.3d 1366, 1374–75 (Fed. Cir. 2011) (internal quotation marks omitted).
Accordingly, we treat claim 16 as a method claim for patent-eligibility
purposes. See id. at 1375.
Having determined that independent claims 9, 16, and 18 are directed
to abstract ideas and that the claim elements, individually and as ordered
combinations, do not transform the claims into patent-eligible subject matter,
we reject claims 9, 16, and 18 under 35 U.S.C. § 101. We also reject
dependent claims 10 and 11, which merely provide further limitations on the
mathematical calculations performed. For the same reasons discussed
above, these further limitations are insufficient to transform the nature of
claims 10 and 11 into patent-eligible subject matter. Accordingly, we reject
claims 10 and 11 under 35 U.S.C. § 101.

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DECISION
We affirm the decision to reject claims 9–11, 16, and 18 under
35 U.S.C. § 103(a).
We enter a new ground of rejection of claims 9–11, 16, and 18 under
35 U.S.C. § 101 as directed to patent-ineligible subject matter.

FINALITY OF DECISION
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.” Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
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 prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
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Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED; 37 C.F.R. § 41.50(b)