Ex Parte Kar et al

Patent Trial and Appeal Board

Sep 20, 2018

13166205 (P.T.A.B. Sep. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/166,205 06/22/2011
92720 7590
HONEYWELL/MUN CK
Patent Services
115 Tabor Road
P.O. Box 377
MORRIS PLAINS, NJ 07950
09/24/2018
FIRST NAMED INVENTOR
Chinmaya Kar
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.
H0027864-0103 5405
EXAMINER
PEREZ BERMUDEZ, Y ARITZA H
ART UNIT PAPER NUMBER
2864
NOTIFICATION DATE DELIVERY MODE
09/24/2018 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):
patentservices-us@honeywell.com
patents@munckwilson.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHINMA YA KAR,
VENKATARAMANA BANTWAL KINI, and SANJAYK. DAVE
Appeal2018-002672
Application 13/166,205
Technology Center 2800
Before GEORGE C. BEST, BRIAND. RANGE, and JANEE. INGLESE,
Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 request our review under 35 U.S.C. § 134(a) of the
Examiner's decision to reject claims 1-23. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify Honeywell International Inc. as the real party in
interest. Appeal Brief filed June 19, 2017 ("App. Br."), 2.
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Application 13/166,205
STATEMENT OF THE CASE
Claim 1 illustrates the subject matter on appeal and is reproduced
below:
1. A method comprising:
receiving, by a vibration analyzer device, one or more
vibration signals representing physical vibrations generated by
a shaft of a machine during operation, the machine comprising
bearings that support the shaft in a relatively fixed position
relative to the machine;
determining a rotational speed of the shaft;
identifying one or more sets of frequency components of
the one or more vibration signals based on the rotational speed
of the shaft, each set of frequency components associated with
an operational characteristic of the shaft other than the
rotational speed of the shaft;
determining relative energy levels of the frequency
components in each set of frequency components by
determining whether each frequency component in each set of
frequency components is less than a first specified value,
greater than a second specified value, or greater than the first
specified value and less than the second specified value;
determining one or more health indicators of the shaft
based on the relative energy levels of the frequency components
in each set of frequency components; and
at least one of: providing the one or more health
indicators for display or generating an alarm based on the one
or more health indicators.
App. Br. 35 (Claims Appendix).
The Examiner sets forth the rejection of claims 1-23 under 35 U.S.C.
§ 101 as directed to non-statutory subject matter in the Non-Final Office
Action entered January 13, 2017 ("Office Act."), and maintains the rejection
in the Examiner's Answer entered November 16, 2017 ("Ans.").
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DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellants' timely contentions,2 we affirm the Examiner's rejection
of claims 1-23 under 35 U.S.C. § 101 for the reasons set forth in the Office
Action, the Answer, and below.
We review appealed rejections for reversible error based on the
arguments and evidence Appellants provide for each issue they identify. 37
C.F.R. § 4I.37(c)(l)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI
2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365
(Fed. Cir. 2011) (explaining that even if the examiner had failed to make a
prima facie case, "it has long been the Board's practice to require an
applicant to identify the alleged error in the examiner's rejections").
Claims 1, 10, 19, 21, and 23
Appellants argue claims 1, 10, 19, 21, and 23 as a group on the basis
of claim 1, to which we accordingly limit our discussion. App. Br. 10-20;
37 C.F.R. § 4I.37(c)(l)(iv).
In Alice Corp. v. CLS Bank International, 134 S. Ct. 234 7 (2014 ), the
Court identified a two-step framework for determining whether claimed
subject matter is judicially excepted from patent eligibility under § 101. In
the first step, "[ w ]e must ... determine whether the claims at issue are
directed to a patent-ineligible concept," such as an abstract idea. Alice, 134
S. Ct. at 2355. The second step involves "a search for an 'inventive
concept'-i.e., an element or combination of elements that is 'sufficient to
2 We do not consider any new arguments Appellants raise in their Reply
Brief that they could have raised in their Appeal Brief. 37 C.F.R.
§§ 4I.37(c)(l)(iv), 4I.41(b)(2).
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ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself,"' and is more than "well-understood,
routine, conventional activit[y]." Alice, 134 S. Ct. at 2355, 2359 (first
alteration in original) ( quoting Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 72-73 (2012)).
The Examiner applies this two-step framework in rejecting claim 1
under 35 U.S.C. § 101. Office Act. 3-5. With respect to the first step, the
Examiner determines that the following steps recited in claim 1 are directed
to an abstract idea: determining a rotational speed of a shaft; identifying one
or more sets of frequency components of one or more vibration signals
(received by a vibration analyzer) based on the rotational speed of the shaft,
each set of frequency components associated with an operational
characteristic of the shaft other than the rotational speed of the shaft;
determining relative energy levels of the frequency components in each set
of frequency components by determining whether each frequency
component in each set of frequency components is less than a first specified
value, greater than a second specified value, or greater than the first
specified value and less than the second specified value; and determining
one or more health indicators of the shaft based on relative energy levels of
the frequency components in each set of frequency components. Office Act.
3--4.
Specifically, the Examiner determines that these steps are directed to
the abstract idea of a mathematical algorithm because the steps calculate
frequency component values of received vibration signals based on a
determined rotational speed of a shaft, and determine the energy levels of the
frequency components by comparing the calculated values against threshold
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values, to determine whether an abnormality exists, which the Examiner
determines is similar to other concepts that have been identified by the
Federal Circuit as abstract, such as calculating parameters indicating an
abnormal condition (In re Grams, 888 F.2d 835 (Fed Cir. 1989)), comparing
information regarding a sample or test subject to a control or target data
(Univ. of Utah Research Found. v Ambry Genetics Corp., 774 F.3d 755
(Fed. Cir. 2014) and Ass 'nfor Molecular Pathology v. Myriad Genetics Inc.,
569 U.S. 576, 589 (2013)), collecting and comparing known information
(Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057 (Fed. Cir.
2011)), comparing data to determine a risk level (PerkinElmer, Inc. v.
Intema Ltd., 496 F. App'x 65 (Fed. Cir. 2012)), comparing intangible data
(Cybersource Corp. v. Retail Decisions, Inc., 654 F.3d 1366 (Fed. Cir.
2011)), and comparing new and stored information and using rules to
identify options (SmartGene, Inc. v. Adv. Biological Labs., S.A., 555 F.
App'x 950 (Fed. Cir. 2014)). Office Act. 3--4; Ans. 4--5.
With respect to the second step of the Alice framework, the Examiner
determines that claim 1 does not include additional elements that amount to
significantly more than the judicial exception. Office Act. 4. Specifically,
the Examiner determines that the feature recited in claim 1 of receiving, by a
vibration analyzer, vibration signals generated by a shaft of a machine
comprising bearings that support the shaft in a relatively fixed position
relative to the machine, constitutes mere data gathering recited at a high
level of generality, and the recited feature of providing the one or more
health indicators for display, or generating an alarm based on the one or
more health indicators, constitutes insignificant extra-solution activity using
conventional equipment. Office Act. 4; Ans. 17. The Examiner determines
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under the second step of Alice that the elements of claim 1, considered both
individually and as an ordered combination, therefore do not provide
meaningful limitations that transform the abstract idea into a patent eligible
application of the abstract idea, such that the claim amounts to significantly
more than the abstract idea itself. Ans. 17.
The Examiner concludes that claim 1 as a whole does not improve
another technology or technical field, does not improve the functioning of a
computer itself, does not effect a transformation or reduction of a particular
article to a different state or thing, does not confine the claim to a particular
useful application, and does not add meaningful limitations that amount to
more than generally linking use of an abstract idea to a particular
technological environment. Office Act. 4--5. The Examiner thus concludes
that the method of claim 1 is de facto ineligible for patenting.
Appellants argue that the Examiner erroneously over-generalizes the
elements of claim 1 into a concept of "a few words" and then improperly
declares in a conclusory manner that the concept is analogous to a case
decided by the Federal Circuit, without providing any analysis of the
reference case, or analysis of all of the elements of claim 1, which,
according to Appellants, are directed to "specific data, specific operations,
and specific hardware that extend Claim 1 far beyond any alleged abstract
idea."3 App. Br. 10-11, 18-19. Appellants further contend that the
3 Appellants assert that "several PTAB decisions confirm that over-
generalized characterizations of the claims in § 101 rejections are improper,"
such as Ex parte Wegman and Ex parte Fuller (App. Br. 18-20). These
decisions, however, have not been designated as precedential decisions of
the Patent Trial and Appeal Board. Accordingly, the decisions in Ex parte
Wegman and Ex parte Fuller are not binding on the present panel.
Furthermore, Appellants do not demonstrate that the underlying facts
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Examiner fails to consider claim 1 in light of the Specification, and
improperly fails to consider whether the character of the claim as a whole is
directed to excluded subject matter. App. Br. 13-14.
Claim 1 recites steps directed to (1) determining a rotational speed
during operation of a shaft of a machine that comprises bearings that support
the shaft in a relatively fixed position relative to the machine; (2) identifying
one or more sets of frequency components of one or more vibration signals
received by a vibration analyzer based on the rotational speed of the shaft,
each set of frequency components associated with an operational
characteristic of the shaft other than the rotational speed of the shaft;
(3) determining relative energy levels of the frequency components in each
set of frequency components by ( 4) determining whether each frequency
component in each set of frequency components is less than a first specified
value, greater than a second specified value, or greater than the first
specified value and less than the second specified value; and ( 5) determining
one or more health indicators of the shaft based on the relative energy levels
of the frequency components in each set of frequency components. These
steps, taken individually, are directed to the abstract idea of manipulating or
analyzing data or information ( vibration signals generated by a shaft) to
generate additional data or information ( a rotational speed of the shaft,
frequency components of the vibration signals, relative energy levels of the
frequency components, and health indicators of the shaft). Merely
combining these steps as recited in claim 1 fails to render the combined steps
any less abstract. See Digitech Image Techs., LLC v. Elecs. for Imaging,
involved in the appeals in Ex parte Wegman and Ex parte Fuller are the
same as or similar to those in the present appeal.
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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.");
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093 (Fed. Cir.
2016) (abstract ideas include collecting information and analyzing that
information "by steps people go through in their minds, or by mathematical
algorithms"); Synopsis, Inc. v. Mentor Graphics Corp., 839 F.3d 1138,
1146-47 (Fed. Cir. 2016) ("[W]e continue to 'treat[] analyzing information
by steps people go through in their minds, or by mathematical algorithms,
without more, as essentially mental processes within the abstract-idea
category."' ( second alteration in original) ( citation omitted)); Intellectual
Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir.
2017) (organizing, displaying, and manipulating data is an abstract idea).
Contrary to Appellants' arguments, as discussed above, the Examiner
specifically addresses each of the "determining" and "identifying" steps
recited in claim 1, and provides a reasoned analysis explaining why these
steps are directed to an abstract idea. As also discussed above, the Examiner
further explains why the "determining" and "identifying" steps recited in
claim 1 are similar to other explicitly delineated concepts identified by the
Federal Circuit as abstract. The Examiner also explains in the Answer that
Appellants' Specification supports the Examiner's position that the
"determining" and "identifying" steps recited in claim 1 are directed to a
mathematical algorithm by indicating that the vibration analyzer recited in
claim 1 identifies frequency components of received vibration signals by
performing a Fourier analysis on the signals-performance of an
algorithm-using a conventional computer ("any suitable structure for
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receiving and analyzing vibration signals ... for example ... a computing
system that includes at least one memory unit, at least one processing unit,
and at least one network interface"). Ans. 4 ( citing Spec. ,r,r 22, 31)
(reference characters omitted); see also Spec. ,r 32.
As discussed above, after considering the "determining" and
"identifying" steps of claim 1 under the first step of the Alice framework,
and then analyzing the remaining features of claim 1 under the second step
of the Alice framework, the Examiner considers the elements of claim 1 as a
whole and concludes that the claimed method as a whole does not improve
another technology or technical field, does not improve the functioning of a
computer itself, does not effect a transformation or reduction of a particular
article to a different state or thing, does not confine the claim to a particular
useful application, and does not add meaningful limitations that amount to
more than generally linking use of the abstract idea to a particular
technological environment.
Because Appellants' arguments do not identify with specificity any
particular error in the Examiner's reasoning and analysis, Appellants'
arguments are unpersuasive of reversible error in the Examiner's rejection.
Jung, 637 F.3d at 1365.
Appellants argue that according to the May 2016 Memorandum from
the Deputy Commissioner for Patent Examination Policy, a § 101 rejection
should identify the abstract idea as it is recited in the claim, and explain why
it corresponds to a concept that the courts have identified as an abstract idea.
App. Br. 12. Appellants assert that in the present case, the Examiner does
not identify an abstract idea similar to those previously found by the courts
to be abstract. J d. Appellants contend that none of the abstract ideas found
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ineligible by the courts is similar to the collection of elements recited in
claim 1, and Appellants argue that the Examiner does not provide an
analysis as to why "nearly every word in the body of Claim 1 is an abstract
idea," other than providing a conclusory and incorrect assertion that the
claim as a whole does not confine the claim to a particular useful
application, and does not amount to significantly more than the abstract idea
itself. Id.
However, contrary to Appellants' arguments, as discussed above, the
Examiner explicitly lists those elements of claim 1 that the Examiner finds
to be directed to an abstract idea, and the Examiner explains why the
asserted abstract idea is similar to concepts that have been identified by the
Federal Circuit as abstract, consistent with the May 2016 Memorandum
from the Deputy Commissioner for Patent Examination Policy.
Contrary to Appellants' further arguments, concepts identified by the
Federal Circuit as abstract, such as calculating parameters indicating an
abnormal condition (Grams), comparing information regarding a sample or
test subject to a control or target data (Ambry and Myriad), collecting and
comparing known information (Classen), comparing data to determine a risk
level (PerkinElmer), comparing intangible data (Cybersource), and
comparing new and stored information and using rules to identify options
(SmartGene), are similar to the "determining" and "identifying" steps recited
in claim 1, which, when considered individually and as an ordered
combination, correspond to manipulating or analyzing data or information to
generate additional data or information, as the Examiner correctly explains.
Consequently, Appellants' arguments are unpersuasive of reversible error in
the Examiner's rejection. Jung, 637 F.3d at 1365.
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Appellants argue that claim 1 recites "receiving, by a vibration
analyzer device, one or more vibration signals," which "is clearly not a step
that can be performed by a person without specific hardware," unlike the
factual situation in Grams. App. Br. 11.
Appellants, however, appear to misapprehend the Examiner's
rejection. As discussed above, the Examiner determines that the
"determining" and "identifying" steps recited in claim 1 are directed to the
abstract idea of a mathematical algorithm, whereas the step of "receiving, by
a vibration analyzer device, one or more vibration signals," constitutes mere
data gathering recited at a high level of generality, and this step, along with
the other elements of claim 1 analyzed by the Examiner under the second
step of the Alice framework, do not amount to significantly more than the
judicial exception. As also discussed above, the Examiner relies on Grams
when applying the first step of the Alice framework because claim 1 is
directed to a process of manipulating or analyzing data or information
( vibration signals generated by a shaft) to generate additional data or
information ( a rotational speed of the shaft, frequency components of the
vibration signals, and relative energy levels of the frequency components)
indicating whether an abnormality exists (health indicators), similar to the
process of measuring parameters indicative of a condition to determine
whether the condition is abnormal, which was held ineligible for patenting
under§ 101 in Grams. Grams, 888 F.2d 840-841. Therefore, Appellants'
arguments are unpersuasive of reversible error. Jung, 637 F.3d at 1365.
Appellants contend that claim 1 "is clearly not using a computer to
perform mental steps routinely carried out by a person," in contrast to the
facts of SmartGene. App. Br. 11. Appellants assert that the November 2016
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Memorandum from the Deputy Commissioner for Patent Examination
Policy on Recent Subject Matter Eligibility Decisions states that Examiners
should avoid relying upon or citing non-precedential decisions unless the
facts of the application under examination uniquely match the facts at issue
in the nonprecedential decision, and Appellants argue that in the present
case, the Examiner fails to show claim 1 uniquely matches the facts at issue
in SmartGene. Id.
However, the claimed process in SmartGene involved providing
patient information to a computing device, generating a ranked listing of
available therapeutic treatment regimens with the device, and generating
advisory information for one or more therapeutic treatment regimens in the
ranked listing with the device. Smart Gene, 555 F. App'x at 954--955. As
the Examiner correctly determines ( discussed above), consistent with the
November 2016 Memorandum from the Deputy Commissioner for Patent
Examination Policy, the abstract idea to which the claims were directed in
SmartGene----comparing new and stored information and using rules to
identify options-is similar to the process recited in claim 1 of comparing
frequency component values calculated from vibration signals generated by
a shaft and the rotation speed of the shaft (new information) to specified
frequency component values (stored information), to identify/determine
health indicators of the shaft (options) using energy levels the frequency
components (rules).
Furthermore, whether a claim is found patent ineligible based mental
activity or abstraction is a distinction without a difference, because both
concepts "whatever may be the precise definition and relation of those
concepts" are excluded from patenting under§ 1 01. Smart Gene, 555 F.
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App'x at 955. Therefore, Appellants' arguments are unpersuasive of
reversible error. Jung, 637 F.3d at 1365.
Appellants argue that claim 1 is not directed to an abstract idea, but
rather recites a specific process that performs specific operations using
specific information and data ( such as vibration signals, rotational speed,
frequency components, energy levels, and health indicators) related to
specific hardware (such as a shaft and bearings) in a machine, and is
specifically designed to achieve an improved technological result. App. Br.
14. Appellants contend that under Enfzsh, LLC v. Microsoft Corp., 822 F.3d
1327 (Fed. Cir. 2016) "it is clear that the character of Claim 1 as a whole is
not simply directed to an alleged abstract idea or to other excluded subject
matter." App. Br. 12-14.
Although claim 1 may recite a specific process that performs specific
operations using specific information and data related to specific hardware
in a machine, the inquiry under Enfzsh is whether claim 1 is directed to a
method that improves the relevant computing technology, or is instead
directed to a result or effect that is itself an abstract idea, and merely invokes
generic processes and machinery. Enfzsh, 822 F.3d at 1335-1336 (the first
step of Alice considers whether the "focus of the claims is on the specific
asserted improvement in computer capabilities ... or, instead, on a process
that qualifies as an 'abstract idea' for which computers are invoked merely
as a tool."). As the Examiner correctly explains, the process of claim 1 does
"not reflect improvement to the computer processing but simply uses a
vibration analyzer for receiving vibration signals and merely recite[ s]
determination/computations of energy levels, and health indicators." Ans. 9.
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Although Appellants assert that the method of claim 1 "achieves the
improved technological result of allowing the operator to quickly detect if a
shaft of a rotating machine may be in danger of failure" (Reply Br. 5---6),
Appellants do not direct us to any factual evidence supporting this
conclusory assertion, such as evidence of record comparing Appellants'
method to existing technology. In re Schulze, 346 F.2d 600, 602 (CCP A
1965) ("Argument in the brief does not take the place of evidence in the
record."). Therefore, Appellants' arguments are unpersuasive of reversible
error. Jung, 637 F.3d at 1365.
Appellants argue that "[p ]ursuant to" McRO, Inc. v. Bandai Namco
Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016), claim 1 is limited to a
specific process using particular information and techniques to achieve an
improved technological result, and "[p ]ursuant to" McRO and the November
2016 Memorandum from the Deputy Commissioner for Patent
Examination Policy on Recent Subject Matter Eligibility Decisions, claim 1
"does not preempt approaches that use different information or different
techniques." App. Br. 14--15. Appellants argue that claims 1 is "rooted in
computer technology to overcome problems specifically arising in
equipment monitoring technology, such as the identification of equipment
fault severity progression with reduced fluctuations in the indicators." App.
Br. 15.
However, as the Examiner correctly explains (Ans. 10), the court in
McRo held that the claims at issue were not directed to an abstract idea
because they were directed to an improvement in computer-related
technology that allowed computers to produce "accurate and realistic lip
synchronization and facial expressions in animated characters," which
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previously could only be produced by human animators. McRO, 837 F.3d at
1314. In the present case, as discussed above, the method of claim 1 is not
directed to an improvement in computer-related technology. Moreover,
Appellants do not direct us to any factual evidence supporting the asserted
improved technological result, such as evidence of record comparing
Appellants' method to existing technology. Unsupported attorney
arguments cannot take the place of evidence necessary to resolve a disputed
question of fact. Schulze, 346 F.2d at 602.
Although claim 1 is directed to a specific process, it is nonetheless
directed to manipulating or analyzing data or information ( vibration signals
generated by a shaft) to generate additional data or information ( a rotational
speed of the shaft, frequency components of the vibration signals, relative
energy levels of the frequency components, and health indicators of the
shaft), and therefore constitutes a procedure for solving mathematical
problems-referred to by the courts as an "algorithm"- corresponding to an
abstract idea. Gottschalk v. Benson, 409 U.S. 63, 65 (1972) (A procedure
for solving a given type of mathematical problem is known as an
"algorithm."). Accordingly, consistent with the November 2016
Memorandum from the Deputy Commissioner for Patent Examination
Policy on Recent Subject Matter Eligibility Decisions, a patent to claim 1
would pre-empt the use of the algorithm itself, rather than a patent-eligible
application of the algorithm, and claim 1 is therefore ineligible for patenting.
Parker v. Flook, 437 U.S. 584, 591 (1978) ("if a claim is directed essentially
to a method of calculating, using a mathematical formula, even if the
solution is for a specific purpose, the claimed method is nonstatutory.").
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Appellants argue that the Examiner "fails to provide any explanation
as to why all of the elements of Claim 1 individually do not add significantly
more to the exception and fails to consider all of the elements as an ordered
combination," contrary to the May 2016 Memorandum from the Deputy
Commissioner for Patent Examination Policy and the July 30, 2015 Subject
Matter Eligibility Guidance Update. App. Br. 16-17.
As discussed above, however, the Examiner explicitly determines
under the second step of Alice that when viewed as a whole, the elements of
claim 1----considered both individually and as an ordered combination----do
not provide meaningful limitations that transform the abstract idea (the
"determining" and "identifying" steps of claim 1) into a patent eligible
application of the abstract idea. Ans. 17-18. Specifically, the Examiner
determines that the feature recited in claim 1 of receiving by a vibration
analyzer vibration signals (generated by a shaft of a machine comprising
bearings that support the shaft in a relatively fixed position relative to the
machine) constitutes mere data gathering recited at a high level of
generality, and the recited feature of providing the one or more health
indicators for display, or generating an alarm based on the one or more
health indicators, constitutes insignificant extra-solution activity using
conventional equipment. Id. The Examiner determines that these steps-
when viewed in the context of claim 1 as a whole-therefore do not confine
claim 1 to a particular useful application, and do not amount to significantly
more than the abstract idea itself, and therefore do not provide meaningful
limitations to transform the abstract idea into a patent eligible application of
the abstract idea. Id. Because Appellants' arguments do not identify with
specificity any particular error in the Examiner's reasoning and analysis,
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Appellants' arguments are unpersuasive of reversible error in the Examiner's
rejection. Jung, 637 F.3d at 1365.
Appellants argue that the operations performed in the method of claim
1 cannot be considered purely generic or conventional. App. Br. 17.
Appellants contend that even if each individual step might be performed by
conventional equipment, the operations recited in claim 1 combine to create
an ordered combination that is not well-understood, routine, or conventional,
and was not previously known in the industry before Appellants' invention.
App. Br. 17-18.
However, although the steps recited in claim 1 may be an ordered
combination that was not well-understood, routine, conventional, or known
in the industry as Appellants assert, the Federal Circuit has made clear that a
"claim for a new abstract idea is still an abstract idea." Synopsis, Inc. v.
Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016).
Therefore, Appellants' arguments are unpersuasive of reversible error
in the Examiner's rejection of claims 1, 10, 19, 21, and 23 under 35 U.S.C.
§ 101, which we accordingly sustain.
Claims 2-9, 11-18, 20, and 22
Appellants argue that the May 2016 Memorandum from the Deputy
Commissioner for Patent Examination Policy states that "the eligibility of
each claim should be evaluated as a whole using the two-step analysis," and
indicates that the Examiner "must provide an explanation as to why each
claim is unpatentable, which must be sufficiently clear and specific." App.
Br. 20. Appellants contend that in the present case, the Examiner does not
evaluate the elements of each of claims 2-9, 11-18, 20, and 22 using the
two-step analysis, and instead merely states that the dependent claims
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"merely expand upon the abstract idea further defining the algorithm steps."
App. Br. 20-33.
In response to these arguments, however, the Examiner explains in the
Answer that (1) claims 2-5, 11-14, and 20 "merely recite definition[s] of
operational characteristics and frequency components[,] which is assigning
values to variables being used [] by the algorithm recited in respective
independent claims 1, 10 and 19, which is mere data gathering and
conventional activities recited at a high level of generality and using
conventional equipment" (Ans. 27, 29, 32, 34), (2) claims 6, 7, 15 and 16
"merely recite the determination of one or more health indicator[ s] of the
shaft by comparing norms of amplitude from sets of frequency components,
which merely expand upon the abstract idea further defining an algorithm
step recited in respective independent claims 1, and 10" (Ans. 37, 39), (3)
claims 8 and 1 7 "merely recite the determination of one or more health
indicator[ s] of the shaft by summing amplitudes from the one or more sets of
frequency components, which describe a mathematical concept and which
merely expand upon the abstract idea further defining an algorithm step
recited in respective independent claims 1, and 10" (Ans. 42), (4) claims 9
and 18 "merely recite the determination of rotational speed of the shaft using
the one or more vibration signals, which describe a mathematical concept
and which merely expand upon the abstract idea further defining an
algorithm step recited in respective independent claims 1, and 1 O" (Ans. 44--
45), and (5) claim 22 "merely recite[s] the definition of relative energy
levels relative to average energy level and amplitude of frequency
components, which merely expand upon the abstract idea further defining an
algorithm step recited in respective independent claim 19" (Ans. 47).
18
Appeal2018-002672
Application 13/166,205
Because Appellants' arguments do not identify with specificity any
particular error in the Examiner's analysis of the dependent claims (Reply
Br. 11-12), Appellants' arguments are unpersuasive of reversible error in the
Examiner's rejection of these claims. We accordingly sustain the
Examiner's rejection of claims 2-9, 11-18, 20, and 22 under 35 U.S.C.
§ 101. Jung, 637 F.3d at 1365; cf In re Baxter Travenol Labs., 952 F.2d
388, 391 (Fed. Cir. 1991) ("It is not the function of this court to examine the
claims in greater detail than argued by an appellant").
DECISION
We affirm the Examiner's rejection of claims 1-23 under 35 U.S.C.
§ 101.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
19