Ex Parte Lu

Patent Trial and Appeal Board

May 4, 2018

12639740 (P.T.A.B. May. 4, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/639,740 12/16/2009
92720 7590
HONEYWELL/MUN CK
Patent Services
115 Tabor Road
P.O. Box 377
MORRIS PLAINS, NJ 07950
05/08/2018
FIRST NAMED INVENTOR
JosephZ. Lu
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.
H0023254-0104 7412
EXAMINER
GILLS, KURTIS
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
05/08/2018 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 JOSEPH Z. LU
Appeal2017-001932
Application 12/639,740 1
Technology Center 3600
Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITT A II, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1--4, 6-12, 14--18, and 20-25, which are all of the claims pending in
the application. 2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies Honeywell International Inc. as the real party in
interest. See App. Br. 3.
2 Claims 5, 13, and 19 have been cancelled.
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Application 12/639,740
STATEMENT OF THE CASE
According to Appellant, the claims are directed to determining an
optimal production schedule for an industrial process by performing an
iterative computation of an intermediate product's contribution to a final
product. Spec. ,r 38, Abstract. 3 Claim 1, reproduced below, is
representative of the claimed subject matter:
1. A method comprising:
receiving first input data from one or more first process
control system components;
receiving second input data from one or more second
process control system components;
performing an iterative process using at least one
processing device, the iterative process comprising:
identifying one or more adjustments to at least one
target quantity using the first input data and one or more
initial estimated product yields, each target quantity
identifying a production target for at least one intermediate
or final product to be produced;
identifying one or more contribution values using
the one or more adjustments, each contribution value
based on an intermediate product's contribution to each of
multiple final products, wherein each contribution value
comprises a sum of multiple values, each of the multiple
values representing a multiplication product of the
intermediate product's contribution percentage to a
different one of the final products and that final product's
pnce;
3 This Decision refers to: (1) Appellant's Specification filed December 16,
2009 (Spec.); (2) the Final Office Action (Final Act.) mailed October 2,
2015; (3) the Appeal Brief (App. Br.) filed March 4, 2016; (4) the
Examiner's Answer (Ans.) mailed September 23, 2016; and (5) the Reply
Brief (Reply Br.) filed November 16, 2016.
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identifying one or more updated estimated product
yields using the one or more contribution values and the
second input data, each updated estimated product yield
identifying an expected quantity of one of the intermediate
or final products to be produced; and
repeating the identifying steps using the one or more
updated estimated product yields as the one or more initial
estimated product yields; and
in response to identifying that the at least one target
quantity meets a desired goal based on the one or more updated
estimated product yields, providing the one or more contribution
values to the one or more second process control system
components to modify an industrial process.
REFERENCE AND REJECTIONS
Claims 1--4, 6-12, 14--18, and 20-25 stand rejected under 35 U.S.C.
§ 101 as being directed to patent-ineligible subject matter. Final Act. 3--4.
Claims 1--4, 6-12, 14--18, and 20-25 stand rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Esposito (US 2008/0243310 Al;
published Oct. 2, 2008) and Official Notice. Id. at 5-12.
Our review in this appeal is limited only to the above rejections and
the issues raised by Appellant. Arguments not made are waived. See MPEP
§ 1205.02; 37 C.F.R. §§ 4I.37(c)(l)(iv) and 4I.39(a)(l).
ANALYSIS
35 u.s.c. § 101
The Examiner concluded claims 1--4, 6-12, 14--18, and 20-25 are
directed to patent-ineligible subject matter. Final Act. 4. We agree with the
Examiner.
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In Alice, the Supreme Court set forth an analytical "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. Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347, 2355
(2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 75-79 (2012)). The first step in the analysis is to "determine
whether the claims at issue are directed to one of those patent-ineligible
concepts." Id. If so, the second step is to consider the elements of the
claims "individually and 'as an ordered combination' to determine whether
the additional elements 'transform the nature of the claim' into a patent-
eligible application." Id. (quoting Mayo, 566 U.S. at 79, 78). In other
words, the second step is to "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. (brackets in original) ( quoting Mayo, 566
U.S. at 73).
Independent Claims
Initially, independent claims 1, 10, and 17, recite a method, an
apparatus, and a non-transitory computer readable medium, respectively. As
such, the claims are directed to a statutory class of invention within 3 5
U.S.C. § 101. Turning to the first step of the Alice analysis, we agree with
the Examiner that the present claims are directed to a patent-ineligible
concept: "enterprise optimization" provided by a "process of organizing
information through mathematical correlations." Final Act. 3--4; Ans. 2-3.
Appellant argues the claims do not recite 'just an organization of
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information[,] but rather the use of several identifications to decide when
and how to modify an industrial process." App. Br. 18; Reply Br. 4--5. In
particular, Appellant points out the claims recite "a specific process that
involves the receipt of input data from various process control system
components, performance of an iterative process using the data, and
providing identified contribution values identified in the iterative process to
the process control system components to modify an industrial process."
App. Br. 17; Reply Br. 3--4.
Appellant's arguments highlight the claimed operations of "receiving"
inputs, "identifying" data using those inputs, "repeating" those operations,
and "providing" the identified data to modify an industrial process, i.e.,
collecting data, analyzing data, and outputting that data. App. Br. 17; Reply
Br. 3--4. However, our reviewing court has determined that, when the
"focus of the asserted claims ... is on collecting information, analyzing it,
and displaying certain results of the collection and analysis," those claims
are "a familiar class of claims 'directed to' a patent-ineligible concept."
Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir.
2016); TDE Petroleum Data Sols., Inc. v. AKM Enter., Inc., 657 F. App'x
991, 993 (Fed. Cir. 2016), cert. denied, 137 S. Ct. 1230 (2017) (citing OIP
Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015)).
Here, similar to TDE Petroleum, the claims evaluate an industrial process by
gathering and analyzing data; the claims are "the sort of data gathering and
processing claim[ s] that [are] directed to an abstract idea under step one of
the Alice analysis." 657 F. App'x at 993. Accordingly, we conclude that the
process of gathering, analyzing, and providing data to modify, i.e., optimize,
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an industrial process is directed to an abstract idea. See OIP Techs., 788
F.3d at 1363 ("the abstract idea of offer-based price optimization").
Turning to the second step of the Alice analysis, we agree with the
Examiner that the claims fail to transform the abstract idea into a patent-
eligible invention. Final Act. 4; Ans. 3--4. Appellant argues the claims are
"significantly more" than the abstract idea itself because the claimed
"operations recited ... combine to create an ordered combination that is not
well-understood, routine, or conventional and that is not previously known
to the industry." Reply Br. 9; App. Br. 19-20. However, as discussed
supra, those claimed operations merely recite gathering, analyzing, and
outputting data. Even considering the claimed subject matter as an ordered
combination, Appellant's arguments do not persuade us the claimed
limitations are anything more than "the most ordinary of steps in data
analysis and are recited in the ordinary order," i.e., data is gathered, that data
is analyzed using an calculation with the data as input, and resultant data is
output. TDE Petroleum, 657 F. App'x at 993. Even further, the claims "do
not include any requirement for performing the claimed functions of
gathering, analyzing," and outputting data "by use of anything but entirely
conventional, generic technology." Elec. Power Grp., 830 F.3d at 1356.
Indeed, the Specification teaches that the operations recited by the claims
may be performed by any generic computing system. Spec. ,r,r 36
("integration unit 154 could be implemented on [ application or system
(DCS),] any server, real-time workstation, ... execution platform,
distributed control (DCS), real-time controller, or other suitable device or
system"), 85 ("the method 500 could be performed by any other device or
system"), 93 ("'controller' means any device, system, or part thereof that
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controls at least one operation"). As such, the claimed operations for
optimizing an industrial process, using routine computing operations that
may be performed by any generic computing system, do not transform the
abstract idea into a patent-eligible invention. See OIP Techs., 788 F.3d at
1363-1364.
Additionally, Appellant argues "the claim also provides improvement
to another technical field. Specifically ... the technical field of industrial
process control." App. Br. 20; Reply Br. 9. However, the claims do not
purport to improve any particular system-rather, the purported
improvement is directed to the abstract idea itself, discussed supra. The
claims arguably "modify" an industrial process but do not recite any
technical advance for any particular system. Instead, the claims merely
recite contribution values are provided "to modify an industrial process,"
without detailing how that industrial process is modified, what that industrial
process is, or what components of that industrial process are modified.
Thus, the improvement offered by Appellant's claims is not rooted in any
novel computer technology, as further evidenced by claim 1 O's recitation of
a generic "processing device." See DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245, 1257 (Fed. Cir. 2014) (finding an inventive concept in the
modification of the conventional mechanics behind website display to
produce a dual-source integrated hybrid display). Rather, Appellant's
Specification identifies as a problem that "it [is] difficult to perform plant-
wide or enterprise-wide optimization in real time." Spec. ,r 4. Appellant's
claimed invention seeks to solve the identified problem by "integrating
planning, scheduling, and control for enterprise optimization." Spec. ,r 5.
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Appellant's identified problem is, therefore, a business problem, not a
technical problem. Claim 1 recites a specific way and specific context for
collecting data, analyzing data, and outputting that data - namely, "a
specific process that involves the receipt of input data from various process
control system components, performance of an iterative process using the
data, and providing identified contribution values identified in the iterative
process to the process control system components to modify an industrial
process." App. Br. 17. Claims 10 and 17 recite similar limitations. While
these steps limit the scope of the abstract idea, the limitations are not
sufficient to transform Appellant's otherwise patent-ineligible abstract idea
into patent-eligible subject matter.
Accordingly, Appellant has not persuaded us claims 1, 10, and 17 are
directed to patent-eligible subject matter. Therefore, we sustain the rejection
of claims 1, 10, and 17 under 35 U.S.C. § 101 as being directed to patent-
ineligible subject matter.
Dependent Claims
Appellant argues dependent claims 2, 4, 8, 11, 12, 15, 18, and 23-25
recite significantly more than the abstract idea itself. App. Br. 22-26; Reply
Br. 10-14. Specifically, Appellant argues claims 2, 11, and 18 "recite[] a
specific technique for the receipt of the data inputs from different sources
including at least one process controller controlling at least a portion of the
industrial process to be modified." App. Br. 22; Reply Br. 10. Further,
Appellant argues claims 4, 8, 12, 15, and 25 recite "additional elements,
[that,] when taken in combination with the other elements recited ... add to
the ordered combination of elements recited and further demonstrate that the
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claim amounts to significantly more than an attempt to patent the alleged
abstract idea." App. Br. 23-24, 26; Reply Br. 11-14. Additionally,
Appellant argues claim 24 "recites a specific technique for the identification
of a plurality of final products that the intermediate product is planned to be
used to produce and percentages for each as well as the multiplying with
price and summation to identif1y] the contribution value in the iterative
process." App. Br. 25; Reply Br. 12-13.
We are not persuaded. The dependent claims do not transform the
abstract idea into significantly more than the abstract idea itself because the
dependent claims only further define the data gathering or data analysis
operations recited in their respective independent claims, which, as
discussed supra, are generic and routine operations. TDE Petroleum, 657 F.
App'x 993. Like their respective independent claims, the operations further
defined by the dependent claims may be performed by any generic
computing system and do not transform the abstract idea into a patent-
eligible invention. See OIP Techs., 788 F.3d 1363.
Appellant has not proffered sufficient evidence or argument to
persuade us that any of the limitations in the remaining dependent claims,
i.e., dependent claims 3, 6, 7, 9, 14, 16, and 20-22, provide a meaningful
limitation that transforms the claims into a patent-eligible application. See
App. Br. 14--26. Accordingly, Appellant has not persuaded us claims 2--4,
6-9, 11, 12, 14--16, 18, and 20-25 are directed to patent-eligible subject
matter. Therefore, we sustain the rejection of claims 2--4, 6-9, 11, 12, 14--
16, 18, and 20-25 under 35 U.S.C. § 101 as being directed to patent-
ineligible subject matter.
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35 u.s.c. § 103
Claims 1--4, 6--12, 14-18, 20---23, and 25
Appellant contends the Examiner erred in finding the combination of
Esposito and Official Notice teaches "each contribution value comprises a
sum of multiple values, each of the multiple values representing a
multiplication product of the intermediate product's contribution percentage
to a different one of the final products and that final product's price," as
recited in claim 1 and similarly recited in claims 10 and 17. App. Br. 28-32;
Reply Br. 14--19. Specifically, Appellant argues "Esposito never considers
any multiplication product of an intermediate product's contribution
percentage and a final product's price" because the "multiplication in
Esposito is only disclosed to involve (i) a 'flow of a raw material with
associated cost' and (ii) a 'flow of a given product with associated price."'
App. Br. 29; Reply Br. 16. Further, Appellant argues "Esposito mentions
summations of certain values" and "performs global calculations of the cost
of raw materials or the revenue from the sale of products," but "Esposito
never considers a contribution value for an intermediate product or any
intermediate product's contribution percentage to a different one of multiple
final products." App. Br. 29; Reply Br. 16.
We are not persuaded. The Examiner finds, and we agree, Esposito's
variable margin teaches a "contribution value" that is based on "a
multiplicative product of raw product[']s contribution [Fi]," i.e., an
"intermediate product," and the "final product[']s price [pi]." Ans. 7-8
(citing Esposito ,r 63). Further, the Examiner finds Esposito's variable
margin is the "difference between TS [(Total Sales)] and TC [(Total Cost)]"
(Ans. 7-8), where "Total Cost= I Ft*Ci," "Total Sales= I Pt*pi," "Fi is the
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flow of a raw material with associated cost Ci[,] and Pi is the flow of a given
product with associated price p/' (Esposito ,r 63).
Appellant's argument that "Esposito never considers any
multiplication product of an intermediate product's contribution" (App.
Br. 29; Reply Br. 16) is not persuasive because we agree with the
Examiner's finding that Esposito's raw material teaches an intermediate
product (see Ans. 8). The Specification describes that "an intermediate
product ... is used to produce one or more final products." Spec. ,r 38; see
id. ,r,r 62, 81. Consistent with the Specification's description of an
intermediate product, Esposito discloses that final "products are produced
through consumption of raw materials." Esposito Abstract; see id. ,r 14. For
example, the "raw materials of [a] hydrogen plant are the feed water stream
12, the natural gas stream 10, the natural gas fuel stream 60, [and]
electricity"; those raw materials are used to produce final products, e.g., "the
hydrogen product stream 60 and the export steam stream 38." Id. ,r 38; see
id. ,r 63. Furthermore, even following Appellant's description that
"intermediate products require processing to be formed" (App. Br. 31; Reply
Br. 1 7), Esposito's raw materials teach intermediate products because
Esposito's raw materials are processed before being used to produce the
final products. For example, to produce Esposito's final hydrogen and
export steam products, in "hydrogen plant 1, a natural gas stream 10 is pre-
heated" and then "natural gas stream 10 would be pretreated by addition of
some of the hydrogen product to a hydrotreater to convert the sulfur species
present in the natural gas to hydrogen sulfide that would be removed by an
adsorbent bed containing zinc oxide"; additionally, "feed water stream 12 is
also preheated ... [ and] then divided into first and second subsidiary feed
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water streams." Esposito ,r 29. Accordingly, Esposito's raw material, e.g.,
natural gas or feed water, teaches an "intermediate product."
Furthermore, Appellant's argument that neither of Esposito's "flow of
a raw material with associated cost,"' i.e., Fi, and "flow of a given product
with associated price,"' i.e., Pi, teach "a final product's price" (App. Br. 29;
Reply Br. 16), does not address the Examiner's finding that Pi teaches the
final product's price (Ans. 8). Specifically, Esposito's "Total Sales"
calculation for final products, i.e., "saleable products ... hydrogen and the
export steam," accounts for "a given product with associated price Pi," i.e.,
the "final product's price." Esposito ,r 63.
Further, Appellant's argument that "Esposito never considers a
contribution value for an intermediate product or any intermediate product's
contribution percentage to a different one of multiple final products" (App.
Br. 29; Reply Br. 16) is not persuasive because that argument merely
summarizes Esposito and italicizes certain claim limitations and, as such,
does not provide any persuasive explanation or elaboration as to why
Esposito does not teach the disputed claim limitation. Moreover, Esposito
teaches that its different final products, e.g., "saleable products ... hydrogen
and the export steam," are created from an intermediate product, e.g., natural
gas or feed water (Esposito ,r 63; see Esposito ,r,r 15, 29-32, 38). Further,
the Examiner finds that Esposito's variable margin, i.e., contribution value,
is determined based on the Total Cost of an intermediate product and the
summation of Total Sales of multiple different final products (Ans. 7-8
(citing Esposito ,r 63)). Because Esposito produces different saleable
products from a raw material, and Esposito's variable margin calculation
considers those different saleable products and the raw material producing
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those saleable products, Esposito's contribution value considers the
intermediate product's contribution to "a different one of multiple final
products."
Additionally, we agree with the Examiner's finding that Esposito's
raw material teaches an "intermediate product," as discussed supra;
therefore we need not address the Examiner's reliance on Official Notice
that "it was well known in the art at the time of the invention to substitute
the raw products of Esposito for the claimed intermediate products" (Final
Act. 7-8; see Ans. 9-10), to reach our decision. As such, we decline to
address Appellant's arguments that the Examiner's reliance on such Official
Notice was improper. See App. Br. 30-32; see also Reply Br. 18-19.
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Esposito and Official Notice teaches "each contribution
value comprises a sum of multiple values, each of the multiple values
representing a multiplication product of the intermediate product's
contribution percentage to a different one of the final products and that final
product's price," as recited in claim 1 and similarly recited in claims 10 and
17. Dependent claims 2--4, 6-9, 11, 12, 14--16, 18, 20-23, and 25 are not
separately argued. See App. Br. 27, 30, 32. Therefore, we sustain the
rejection of claims 1--4, 6-12, 14--18, 20-23, and 25 under 35 U.S.C.
§ 103(a) as being unpatentable over Esposito and Official Notice.
Claim 24
Appellant contends the Examiner erred in finding the combination of
Esposito and Official Notice teaches "identifying a percentage of the
intermediate product planned to be used to produce each of the final
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products to identify multiple percentages; multiplying a respective one of the
multiple percentages and a price of a respective one of the final products to
identify multiple multiplication products," as recited in claim 24. App.
Br. 33-34; Reply Br. 19-21. Specifically, Appellant argues "all of the
formulas and variables in paragraph [0063] of Esposito (to which the
Examiner refers) only consider flow and cost of 'a raw material' and flow
and price of 'a given product' as the formula variables," (Reply Br. 20) but
the claim "recites identification of a percentage of the intermediate product
planned to be used to produce each of the final products to identify multiple
percentages and multiplication of a respective one of the multiple
percentages and a price of a respective one of the final products to identify
multiple multiplication products" (App. Br. 33-34).
We are not persuaded. As discussed supra, the Examiner finds, and
we agree, Esposito's raw material teaches an "intermediate product." Ans.
7-8. The Examiner further finds (id.), and we agree, Esposito's process
calculates variable margin by considering the "flow of a raw material"
(Esposito ,r 63), e.g., "flow rates of the feed water stream 12 [or] the natural
gas stream 10" (Esposito ,r,r 39, 61).
Appellant's arguments, that Esposito discloses flows, but the claims
recite percentages (App. Br. 33-34; Reply Br. 20) does not address the
Examiner's conclusion that it would have been obvious to "substitute"
"values" of raw material flows "as percentages" (Final Act. 12). Esposito's
raw material flow, or flow rate, is a measure of the consumption of that raw
material in producing a final product (Esposito ,r 14), e.g., "[i]ncreasing the
flow rate of the natural gas stream 10 will increase the production of
hydrogen" (Esposito ,r 37). The Examiner takes official notice that
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representing the raw material consumption as a percentage, rather than a
rate, is obvious because both rates and percentages are comparative
measurements. Final Act. 8. Because Appellant does not traverse the
Examiner's assertion of official notice we determine Appellant's accepts the
noticed statement as admitted prior art.
Further, Appellant's argument that "Esposito never considers a
contribution value for an intermediate product or any plurality of final
products that the intermediate product is planned to be used to produce"
(App. Br. 34) is not persuasive because that argument merely summarizes
Esposito and recites claim limitations without any persuasive explanation or
elaboration as to why Esposito does not teach those disputed claim
limitations. In any event, as discussed supra, the raw materials of Esposito,
e.g., natural gas or feed water, produce multiple final products, e.g.,
"saleable products ... hydrogen and the export steam." Esposito ,r 63; see
Esposito ,r,r 15, 29-32, 38.
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Esposito and Official Notice teaches "identifying a
percentage of the intermediate product planned to be used to produce each of
the final products to identify multiple percentages; multiplying a respective
one of the multiple percentages and a price of a respective one of the final
products to identify multiple multiplication products," as recited in claim 24.
Therefore, we sustain the rejection of claim 24 under 35 U.S.C. § 103(a) as
being unpatentable over Esposito and Official Notice.
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DECISION
For the reasons above, we affirm the Examiner's decision rejecting
claims 1--4, 6-12, 14--18, and 20-25.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 4I.50(f).
AFFIRMED
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