Ex Parte Hamzaoui et al

Patent Trial and Appeal Board

Aug 22, 2018

13531570 (P.T.A.B. Aug. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/531,570 06/24/2012
48813 7590 08/24/2018
LAW OFFICE OF IDO TUCHMAN (YOR)
PO Box 765
Cardiff, CA 92007
FIRST NAMED INVENTOR
Karim Hamzaoui
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.
JP920100135US2 1018
EXAMINER
ISLAM, MOHAMMAD K
ART UNIT PAPER NUMBER
2864
NOTIFICATION DATE DELIVERY MODE
08/24/2018 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):
pair@tuchmanlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KARIM HAMZAOUI, SHOHEI HIDO, and
SHOKO SUZUKI
Appeal2016-006162
Application 13/531,570
Technology Center 2800
Before CATHERINE Q. TIMM, MARK NAGUMO, and JULIA HEANEY,
Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants2 appeal from the
Examiner's decision to reject claims 1-14. We have jurisdiction under
35 U.S.C. § 6(b).
1 In explaining our Decision, we cite to the Specification dated June 24,
2012 as amended on February 23, 2015 (Spec.), the Final Office Action
dated April 7, 2015 (Final), the Appeal Brief dated October 20, 2015
(Appeal Br.), the Examiner's Answer dated March 25, 2016 (Ans.), and the
Reply Brief dated May 24, 2016 (Reply Br.).
2 Appellants identify the real party in interest as International Business
Machines Corporation. Appeal Br. 2.
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We AFFIRM.
The claims are directed to a computer program product (see, e.g.,
claim 1) and a system including a plurality of sensors, a first server, a proxy,
and a second server that perform the functions attributed to the computer
program product recited in claim 1 (see, e.g., claim 8). According to the
Specification, the system may be a control system including an industrial
control system (ICS) or an information system. Spec. ,r 14. Further, as a
computer program product or as a system, the invention can also naturally
have substantially the same technical features as in the case where the
present invention is described as a method. Id.
Claim 1 is illustrative:
Claim 1. A computer program product for interpolating
sensor data at an industrial control system, the industrial control
system including a plurality of sensors, a proxy, and a server;
the computer program product comprising:
a non-transitory computer readable storage medium
having computer readable program code embodied therewith,
the computer readable program code configured to:
measure objects by the plurality of sensors to obtain first
measurement values, respectively;
compute a correlation among the first measurement
values by the server based on the first measurement values;
compute an actual measurement value of a second
measurement value by the proxy based on the first
measurement values and a given function;
verify the plurality of sensors by setting one or more
sensors as verification target sensors in tum by the server at a
predetermined timing;
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compute a predicted value of the second measurement
value by the server based on the correlation and the first
measurement values obtained from other sensors, the other
sensors consist of the plurality of sensors excluding the
verification target sensors; and
output to the industrial control system the predicted value
of the second measurement value instead of the actual
measurement value thereof at least during the verification of the
verification target sensors if an anomalous sensor is identified.
Appeal Br. 19-20 (claims appendix).
The only other independent claim is claim 8. Claim 8 is similar to
claim 1 except that it is directed to a system including a plurality of sensors,
a proxy, and two servers that perform functions resulting in outputting the
predicted value recited in claim 1. Claim 8 does not recite the intended use
of interpolating sensor data at an industrial control system found in the
preamble of claim 1.
The Examiner maintains the following rejections:
A. The rejection of claims 1-14 under 35 U.S.C. § 101 as directed to
judicially-excepted subject matter;
B. The rejection of claims 1--4, 6-11, 13, and 14 under 35 U.S.C. §
I03(a) as obvious overUluyol3 in view ofGross4; and
C. The rejection of claims 5 and 12 under 35 U.S.C. § 103(a) as
obvious over Uluyol in view of Gross and further in view ofNg5.
3 Uluyol et al., US 6,804,600 Bl, issued October 12, 2004.
4 Gross et al., US 7,292,952 Bl, issued November 6, 2007.
5 Ng et al., US 2010/0325074 Al, issued December 23, 2010.
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OPINION
A. The rejection of claims 1-14 under 35 US.C. § 101 as directed
to non-statutory subject matter
Turning first to the rejection under § 101, we note that Appellants
focus their arguments on claims 1 and 8. Appeal Br. 6-10. We select
claims 1 and 8 as representative for resolving the issues on appeal.
Patent eligibility under § 101 is a threshold issue and a question of
law. Parker v. Flook, 437 U.S. 584, 593 (1978) ("The obligation to
determine what type of discovery is sought to be patented must precede the
determination of whether that discovery is, in fact, new or obvious.");
Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1338
(Fed. Cir. 2017) ("Patent eligibility under§ 101 is an issue of law.").
However, in some instances, there may be some questions of fact underlying
the determination. Berkheimer v. HP Inc., 890 F.3d 1369, 1370 (Fed. Cir.
2018).
35 U.S.C. § 101 states 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, subject to
the conditions and requirements of this title." But even if at first blush a
claim appears to be directed to one of the statutory classes of invention listed
in § 101, it may not be eligible for a patent. "Phenomena of nature, though
just discovered, mental processes, and abstract intellectual concepts are not
patentable, as they are the basic tools of scientific and technological work."
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 70-72
(2012) (quoting Diamond v. Diehr, 450 U.S. 175, 185 (1981) (quoting
Gottschalkv. Benson, 409 U.S. 63, 67 (1972)). "And monopolization of
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those tools through the grant of a patent might tend to impede innovation
more than it would tend to promote it." Id. The concern that drives this
exclusionary principle is one of pre-emption. Alice Corp. Pty. v. CLS Bank
Int'!, 134 S. Ct. 2347, 2354 (2014). A claim that would wholly pre-empt
others from making and using laws of nature, natural phenomena, and
abstract ideas is not patentable. Alice, 134 S. Ct. at 2354--55.
Because "[a]t some level, all inventions embody, use, reflect, rest
upon, or apply laws of nature, natural phenomena, or abstract ideas, one
must take care to strike the correct balance when considering the question of
whether the claim is directed to one of the exclusions. Alice, 134 S. Ct. at
2354 (internal quotations omitted). On the one hand, one must not let the
exclusion principle swallow all of patent law. On the other hand, one must
make sure that the statute is not interpreted in ways that make patent
eligibility depend simply on the draftsman's art without reference to the
principles underlying the prohibition against patents for natural laws. Mayo,
566 U.S. at 72 (internal quotations omitted).
As stated in Alice:
Accordingly, in applying the § 101 exception, we must
distinguish between patents that claim the building blocks of
human ingenuity and those that integrate the building blocks
into something more, thereby transforming them into a patent-
eligible invention. The former would risk disproportionately
tying up the use of the underlying ideas and are therefore
ineligible for patent protection. The latter pose no comparable
risk of pre-emption, and therefore remain eligible for the
monopoly granted under our patent laws.
Alice, 134 S. Ct. at 2354--55 (internal quotations and citations to Mayo
omitted). In Alice, the Court extended a framework that had been used in
Mayo for distinguishing claims pre-empting laws of nature, natural
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phenomena, and abstract ideas from claims amounting to patent-eligible
applications of those concepts. Alice, 134 S. Ct. at 2355. As stated in Alice:
First, we determine whether the claims at issue are
directed to one of those patent-ineligible concepts. If so, we
then ask, what else is there in the claims before us? To answer
that question, we consider the elements of each claim both
individually and as an ordered combination to determine
whether the additional elements transform the nature of the
claim into a patent-eligible application. We have described step
two of this 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.
Alice, 134 S. Ct. at 2355 (internal quotes and citations to Mayo omitted).
When applying the above framework, one must keep in mind what it
is designed to accomplish. It is designed to prevent the patenting of claims
that would pre-empt the basic tools of scientific and technological work such
as laws of nature, natural phenomena, and abstract ideas and to prevent
artful patent drafting from circumventing this principle by attempting to
limit the use of the basic tool to a particular technological environment or
adding insignificant post-solution activity. Mayo, 566 U.S. at 72-73.
The Examiner determines that claims 1 and 8 "do not amount to
significantly more than an abstract idea of sensor data manipulation." Final
15. The Examiner determines that the additional elements or combination of
elements, such as the server, sensor, and control system, amount to no more
than: (i) mere instructions to implement the idea on a computer, and/or (ii)
the recitation of generic computer structure that serves to perform generic
computer functions that are well-understood, routine, and conventional
activities previously known to the pertinent industry. Id. In the Answer, the
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Examiner contrasts the claims to those reviewed in Diamond v. Diehr, 450
U.S. 175 (1981 ). Ans. 9--11.
Appellants contend that under part 1 of the Alice analysis "the
Examiner's characterization of the claims as sensor data manipulation is too
broad." Appeal Br. 6-7 (claim 1), 8 (claim 8). Appellants further fault the
Examiner for not providing evidence that the claims as a whole are directed
to a judicial exception. Appeal Br. 7 ( claim 1 ), 8 ( claim 8).
Appellants' arguments are not persuasive of reversible error on the
part of the Examiner.
That claims 1 and 8 are directed to a judicial exception is clear from
the claims themselves as interpreted consistent with the Specification as we
must do. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004) (quoting In re Bond, 910 F.2d 831,833 (Fed. Cir. 1990))
("During examination, 'claims ... are to be given their broadest reasonable
interpretation consistent with the specification, and ... claim language
should be read in light of the specification as it would be interpreted by one
of ordinary skill in the art."').
Claim 1 is directed to computer program code. The claim recites an
intended use for the code as interpolating data at an industrial control
system. The industrial control system, according to the written description
of the Specification, is not particularly limited and can be any of a wide
range of systems including those that control devices in buildings, factories,
municipal facilities, home networks, or office networks. Spec. ,r,r 3, 26.
The software is computer code embodied in some way with a readable
storage medium. Although the code is "configured to," among other things,
"measure objects by the plurality of sensors" that limitation cannot be read
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as an affirmative step of performing the act of measuring. To do so would
give rise to rejections under 35 U.S.C. § 112 ,r 1 for lack of enablement and
written description. This is because, conventionally, software code does not
perform an act of measuring; sensors do the measuring while the computer
code merely manipulates the data generated by the sensors and issues
instructions. There is no disclosure in the written description indicating that
the computer code performs the act of measuring. We have no rejection
under 35 U.S.C. § 112 under either the first or second paragraph before us.
And the Examiner attributes the limitation as related to mere data collection
with no dispute by Appellants. Ans. 10; Reply Br. 3-7. Thus, we interpret
the "measure objects ... " clause as directed to obtaining the sensor data.
The other steps performed by the computer program code are steps of
computing (by both the proxies and the servers), verifying (by servers), and
outputting numerical values (by servers). Claim 1. The written description
indicates that these steps were known in the art or done manually. Spec. ,r
28 ( correlation r is based on temporal change of the first measurement
values v 1 to vk as done in prior art patent literature 3 (Spec. ,r 6) and
computing an actual measurement value may be an arithmetic average or a
weighted average of the first measurement values), Spec. ,r 30 (any
verification method can be used including manual verification), Spec. ,r 31
(the interpolation can employ a known method).
Claim 8 is directed to a system that can be an information system.
Spec. ,r 14.
Looking at the claims as a whole, both claims 1 and 8 are directed to
the abstract idea of interpolating sensor data. Specifically, the invention
"relates to a technique of interpolating missing pieces of sensor data by
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using the known pieces of sensor data." Spec. ,r 2. In one aspect, the claims
are directed to a computer program product used to carry out the abstract
idea of interpolating sensor data. See, e.g., claim 1. In another aspect, the
claims are directed to a system that includes sensors to obtain the necessary
sensor data measurements and servers and proxies to perform calculations
and output data. See, e.g., claim 8.
According to the Specification, the improvement over the prior art is
in the control aspect of the computer program product and system: The
programming allows a target system to operate as continuously as possible
without stopping even if anomalous data indicates a sensor has failed. Spec.
,r 8. The programming does this by substituting a predicted measurement
value for a sensor value found to be anomalous during a sensor verification
process. Spec. ,r 9. The Specification refers to this technique as a technique
of interpolating missing pieces of sensor data using known pieces of sensor
data. Spec. ,r 2.
At the end of the day, the steps performed by the computing structures
are essentially a method of calculating using mathematical formulas. The
method starts with data, applies algorithms, and ends with a new form of
data that is output. Such steps, without more, have been held to be directed
to an abstract idea. Digitech Image Techs., LLC v. Elecs. for Imaging, Inc.,
758 F.3d 1344, 1351 (Fed. Cir. 2014). As stated in SAP Am., Inc. v.
Investpic, LLC, 890 F.3d 1016, 1021 (Fed. Cir. 2018):
[C]laims focused on "collecting information, analyzing it, and
displaying certain results of the collection and analysis" are directed
to an abstract idea. Electric Power, 830 F.3d at 1353. "Information as
such is an intangible," hence abstract, and "collecting information,
including when limited to particular content ( which does not change
its character as information), [i]s within the realm of abstract ideas."
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Id. ( citing cases). So, too, is "analyzing information ... by
mathematical algorithms, without more." Id. at 13 54 ( citing cases,
including Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d
451 (1978), and Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34
L.Ed.2d 273 (1972)). And "merely presenting the results of abstract
processes of collecting and analyzing information, without more (such
as identifying a particular tool for presentation), is abstract as an
ancillary part of such collection and analysis." Id. (citing cases). The
claims here are directed at abstract ideas under those principles.
SAP Am., Inc. at 1021. Claims 1 and 8 are directed to an abstract idea.
The second question in the Alice framework is: "[W]hat else is there
in the claims before us?" Alice, 134 S. Ct. at 2355 (2014). Apart from the
sensors that supply data, which are claimed generically, claim 1 merely
recites computer program code and generic computer structures on which
the code runs and claim 8 merely recites the generic sensors that gather the
data and the generic computer structures for performing the data
manipulation functions. The generic computer structures (servers and
proxies) are used for known computer functions and are not said to be
employed in a new combination or configuration. See Spec., generally. As
stated in Alice, "if a patent's recitation of a computer amounts to a mere
instruction to implement an abstract idea on a computer, that addition cannot
impart patent eligibility." Alice, 134 S. Ct. at 2358 (internal quotations and
citations to Mayo omitted). Put another way, Appellants have not disclosed
and claimed a novel or nonobvious computer (or component) that enables
the performance of the recited procedure.
Appellants fault the Examiner for not providing evidence that the
claim as a whole is directed to a judicial exception. Appeal Br. 7 ( claim 1 ),
8 ( claim 8). But no extrinsic evidence is required for support of the
Examiner's determination here. The caselaw makes clear that the type of
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mental steps and data manipulations the computer program code is
configured to accomplish are in the realm of abstract ideas and the generic
computer recitations cannot impart patentability. Alice, 134 S. Ct. at 2358;
Parker v. Flook, 437 U.S. 584, 585-86, 98 S. Ct. 2522, 2523, 57 L. Ed. 2d
451 (1978); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354
(Fed. Cir. 2016).
Appellants further contend that Appellants' claimed invention
improves the functioning of the computer itself and an existing technological
process. Reply Br. 4--5. But what is improved is the use of data.
Specifically, the use of the predicted value as the output to the controller
during verification. This is not an improvement in the computer as a tool,
but an improvement in certain independently abstract ideas that use
computers as tools. The use of the computer as a tool to implement abstract
ideas does not transform the abstract ideas themselves into patent eligible
subject matter. Elec. Power Grp., LLC, 830 F.3d at 1354.
B. The rejection of claims 1-4, 6-11, 13, and 14 under 35 US.C.
§ 103(a) as obvious over Uluyol in view of Gross
Turning to the rejection of claims 1--4, 6-11, 13, and 14 under 35
U.S.C. § 103(a) as obvious over Uluyol in view of Gross, we find that
Appellants focus the argument on claim 1. Appeal Br. 11-14. Thus, we will
also focus on that claim.
The Examiner finds that Uluyol discloses a computer program product
configured as required by claim 1 except for the output configuration. Final
16-18. In this regard, claim 1 requires the computer program product be
configured to "output to the industrial control system the predicted value of
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the second measurement value instead of the actual measurement value
thereof at least during the verification of the verification target sensors if an
anomalous sensor is identified." Claim 1 ( emphasis added). The Examiner
finds Uluyol "does not explicitly state outputting the predicted (i.e.
expected) value of the second measurement value instead of the actual
measurement value if an anomalous sensor is identified." Id. The Examiner
finds that "Gross teaches outputting the estimated (i.e. predicted value)
signal in place of the signal/ram the failed sensor." Id. (emphasis added),
citing Gross col. 5, 11. 52-54 and Fig. 4.
Appellants emphasize the Examiner's use of the phrase "from the
failed sensor" and contend that "this is not what is claimed." Appeal Br. 12.
Appellants argue that "[ c ]laim 1 requires outputting the predicted value
during the verification of a sensor when an anomalous sensor is identified -
claim 1 does not claim a failed sensor." But as pointed out by the Examiner
in response to this argument, although Gross uses the word "failed" in
column 5, lines 52-54, Gross teaches that the failed sensor can be a sensor
that has totally failed or a sensor with degraded performance. Ans. 16,
citing Gross col. 2, 11. 41--43. Whether the sensor has totally failed or has
degraded performance, it will be an "anomalous sensor" within the meaning
of claim 1. Ans. 16.
Claim 1 requires the predicted value be output instead of the actual
measurement value "at least during the verification of the verification target
sensors if an anomalous sensor is identified." Claim 1 ( emphasis added).
Uluyol teaches a sensor error compensation system that uses a hetero-
associative model to generate an expected value that is used to validate, i.e.,
verify, the sensor in the sensor fault detector. Uluyol col. 6, 11. 26-63, Fig.
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5. Uluyol states that"[ w ]ith the faulty sensor detected, the faulty sensor
values can be replaced in the system with a corrected value" derived from
the expected values. Uluyol col. 6, 11. 64---67. Gross suggests using the
estimated signal instead of the signal from the "failed" sensor. Gross col. 5,
11. 52-55. Together the prior art suggests replacing the signal from an
anomalous sensor, whether the sensor has completely failed or is otherwise
outputting some other lesser anomalous data, with a corrected or estimated
value, which reads on a predicted value. The suggestion is to make the
substitution as soon as the anomalous value is identified. The prior art does
not disclose any lag time. When the sensor is identified as faulty or
anomalous during verification, one would use the predicted value at that
time.
Appellants have not identified a reversible error in the Examiner's
rejection.
C. The rejection of claims 5 and 12 under 35 US.C. § 103(a) as
obvious over Uluyol in view of Gross and further in view of Ng.
Turning to the rejection of claims 5 and 12 under 35 U.S.C. § 103(a)
as obvious over Uluyol in view of Gross and further in view of Ng, we
determine that Appellants have identified a reversible error in this rejection.
Claim 5 requires that the computer program code be configured to
verify the sensors in descending order of contribution to the actual
measurement value of the second measurement value. Claim 12 is
analogously limited.
The Examiner's rejection hinges on the finding that Ng teaches
verifying the sensor in descending order of contribution to the actual
measurement value of the second measurement value. Final 21, citing Ng ,r
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60; Ans. 20, citing Ng. ,r,r 26, 62. But as pointed out by Appellants, Ng does
not relate to verifying sensors. Appeal Br. 15.
Ng is directed to a "Telecare" system used by care providers (CPs) to
monitor the wellbeing of persons, which Ng calls Service Users (SUs). Ng
,r 1-2. For instance, the system may use motion sensors to detect the
movement of the SU s within a dwelling. Ng ,r 7. If a group of motion
sensors fails to detect an event (motion) beyond a threshold value (within a
threshold time period), an alarm is triggered. Ng ,r,r 7-8. To set threshold
values, the monitoring system receives a plurality of sensed values from
sensor nodes (e.g., motion detectors). Ng ,r,r 1, 7, 8, 16. The system
processes "a plurality of sensed values in an order of value size, to generate
a corresponding predicted value for each of the plurality of sensed values,
by reference to a value sequence trend of the plurality of sensed values." Ng
,r 17 ( emphasis added). Figures 4A and 4B show the ordering of motion
detector values by increasing inter-event time (increasing durations of non-
movement) in ascending order along with the corresponding predicted
values. Ng ,r,r 51, 60. The data is assigned sample numbers (x-axis) based
on sensed value size rather than based on the time of sampling. Id. This
ordered data is used to predict the value of the next sample. Ng ,r 60.
Differences between the two generated data sets of actual and predicted
values are used to set a threshold value. Ng ,r 64.
The Examiner has not established that Ng's method of using ordered
data to predict the value of the next sample, generate two sets of data, one
with actual values, and one with predicted values, and generate a threshold
value using the two data sets is the same as, or analogous to, verifying data
in an order of contribution to the actual measurement value of the second
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measurement value. Verifying sensors in descending order requires
deciding what sensor of a group of sensors to verify first. Ng does not
discuss any method of selecting a sensor for verification. The decision to
select one sensor before another when verifying sensors is different than the
act of arranging sensor data by its measurement value as done in Ng. The
Examiner does not provide sufficient reasoning to bridge the gap between
what Ng teaches and what claim 5 requires. Nor has the Examiner provided
adequate reasoning to support a suggestion to combine the references in a
way that would result in what is claimed.
CONCLUSION
We sustain the Examiner's rejection of claims 1-14 under 35 U.S.C. §
101.
We sustain the Examiner's rejection of claims 1--4, 6-11, 13, and 14
under 35 U.S.C. § 103(a).
We do not sustain the Examiner's rejection of claims 5 and 12 under
35 U.S.C. § 103(a).
DECISION
Because at least one rejection of each claim is sustained, the
Examiner's decision is affirmed.
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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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