Ex Parte MUENSTERER et al

Patent Trial and Appeal Board

Sep 27, 2018

13193084 (P.T.A.B. Sep. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/193,084 07/28/2011
23911 7590 10/01/2018
CROWELL & MORING LLP
INTELLECTUAL PROPERTY GROUP
P.O. BOX 14300
WASHINGTON, DC 20044-4300
FIRST NAMED INVENTOR
Thomas MUENSTERER
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.
l l 4952.63695US 7231
EXAMINER
DALBO, MICHAEL J
ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
10/01/2018 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):
edocket@crowell.com
tche@crowell.com
apomeroy@crowell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL
AND APPEAL BOARD
Ex parte THOMAS MUENSTERER and MATTHIAS WEGNER1
Appeal2017---010645
Application 13/193,084
Technology Center 2800
Before BEYERL YA. FRANKLIN, MARK NAGUMO, and MICHAEL G.
McMANUS, Administrative Patent Judges.
FRANKLIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants request our review under 35 U.S.C. § 134(a) of the
Examiner's decision rejecting claims 1-8, 10, 12, and 19. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b ).
1 Appellants identify the real party in interest as Airbus Defence and Space
GmbH.
Appeal2017-010645
Application 13/193,084
STATEMENT OF THE CASE
Claim 1 is illustrative of Appellants' subject matter on appeal and is
set forth below (text in bold for emphasis):
1. A method for assessing a ground area for suitability as a landing
zone or taxi area for aircraft via a synthetic vision system, comprising:
producing three-dimensional data for the ground area by repeated,
successive scanning of the ground area in a plurality of measurement cycles
using a radar-based or laser-based 3D sensor that generates measurement
beams having an acute angle of incidence on the ground area;
determining a spatial measured-value density of the three-dimensional
data and at least one further statistical property of the three-dimensional
data, wherein the spatial measured-value density represents an amount of
measurement points per area element over the plurality of measurement
cycles;
producing, based on the determined spatial measured-value density
and the at least one further statistical property, a measure of a local
roughness of the ground area by logically combining the measured-value
density with the at least one further statistical property of the three-
dimensional data, the logical combination being addition, multiplication or a
combination of addition and multiplication;
classifying, using a numerical classifier, individual area elements of
a synthetic model of the ground area based on the produced local
roughness values according to a degree of suitability of the individual area
elements as a landing area or taxi area; and
modifying the synthetic model according to the numerical classifier
associated with each individual area element via the synthetic vision
system,
wherein producing the measure of the local roughness of the
ground area includes identifying individual area elements associated
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Application 13/193,084
with a shadow region resulting from the acute angle of incidence of the
measurement beams.
THE REJECTION
Claims 1-8, 10, 12, and 19 are rejected under 35 U.S.C. § 101 as
being directed to a judicial exception (i.e., a law of nature, a
natural phenomenon, or an abstract idea) without significantly more.
ANALYSIS
Upon consideration of the evidence on this record and each of the
respective positions set forth in the record, we determine that, although the
claims are drawn to the abstract idea of analyzing and presenting data
("modifying the synthetic model"), the Examiner failed to support the
findings in the Alice step two analytical framework, that recited steps were
conventional in the art. We therefore reverse.
To determine whether an invention claims ineligible subject matter,
the Supreme Court has established a two-step framework. First, we must
determine whether the claims at issue are directed to a patent-
ineligible concept such as an abstract idea. Alice Corp. Pty. Ltd. v. CLS Bank
Int'!, 134 S. Ct. 2347, 2355 (2014). Second, if the claims are directed to an
abstract idea, we must "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." Id. (quoting Mayo, 566 U.S. at 79). To transform an abstract
idea into a patent-eligible application, the claims must recite "more than
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Application 13/193,084
simply stating the abstract idea while adding the words 'apply it."' Id. at
2357 (quoting Mayo, 566 U.S. at 72 (internal alterations omitted)).
With regard to the first step of the two-step framework of Alice,
beginning on page 4 of the Appeal Brief, Appellants argue that the claimed
invention delineates a process for better assessing ground area for aircraft
landing/taxiing suitability, and then modifying the synthetic model produced
by the synthetic vision system accordingly.
Appellants state that, in particular, 3D data is produced by the
repeated, successive scanning by 3D sensor measurement beams of the
ground area at an acute angle of incidence. Br. 4.
Appellants state that this acute angle of incidence scanning
produces identifiable "shadow regions" in the resultant data by exploiting
the special effects that a measurement beam with an acute angle of incidence
has on the generated 3D data. Id. Appellants state that these special effects
include a localized reduction in spatial measured-value density of the 3D
data, corresponding to a "shadow" when an object that might render the area
element unsuitable is present. Id.
Appellants argue that the unique statistical effect is then exploited by
the invention to determine which ground area elements of a synthetic
model are suitable ( or unsuitable) for landing or taxiing, and the synthetic
model is modified in accordance with that determination. 2 Appeal Br. 6.
2 This aspect of the claimed invention is reflected by the recitations of claim
1 shown in bold text, supra.
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Application 13/193,084
Thus, Appellants argue that claim 1 is not directed to merely a generic
implementation of an abstract idea for the reasons expressed on pages 4--11
of the Appeal Brief.
The Examiner disagrees and responds by stating mathematical
algorithms, economic practices, and business practices are categories of
abstract concepts identified by the courts. Ans. 3. The Examiner states that
among the plurality of abstract concepts identified by the courts, the claims
of Electric Power Group, LLC v. Alstom S.A. 830 F.3d 1350 (Fed. Cir. 2016)
and FairWarning IP, LLC v. Iatric Systems, Inc. 839 F.3d 1089 (Fed.
Cir. 2016) were directed to methods/ systems of monitoring/ collecting data,
analyzing the data, and presenting the result of the analyzed data. The
Examiner states that as noted in these cases, the concept of collecting data
from a system, analyzing the data, and displaying desired information based
on results of the analysis amounts to an abstract idea. Within this context,
and to the extent that the claims language falls within an abstract concept,
we agree with the Examiner that, with regard to step 1 of the Alice
framework, Appellants claims are directed to a category of an abstract
concept as identified by the courts.
We thus move on to the second step of the Alice framework It is the
Examiner's position that the remaining claim limitations relate to a data
processing algorithm which is utilized to obtain the desired information
based on the result of the claimed invention, i.e., a modified synthetic model.
Ans. 3.
The Examiner concludes that because the claim limitations
individually, or as a whole, do not include anything that would amount
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to something significantly more than the discussed data gathering or data
processing algorithm, i.e., the claimed abstract idea, the claims do not meet
the patent eligibility requirements under step 2 of the Alice framework. Ans.
3--4. The Examiner states that aspects of these remaining claim limitations
are well-known in the art. Ans. 9. The Examiner states that the claims do
not improve the abilities of the generic computer system in general and that
any improvement lies in a particular data processing algorithm which
obtains a particular result utilizing the synthetic vision system as a tool to
implement a specific set of calculations, and synthetic vision systems are
well-known in the art. Id.
Appellants argue that even if the claims primarily encompass the
alleged abstract idea, the claims are nonetheless patent eligible under the
second step of the Section 101 inquiry. Appeal Br. 11. Appellants argue
that their claimed method is tied to specific non-trivial structures and
machines, including the laser-based or radar-based 3D sensor and the
synthetic vision system, as well as to non-trivial specific processes.
Appellants argue that neither of these structures or processes are generic or
conventional. Id.
Appellants argue that the claimed 3D sensor is a radar-based or laser-
based 3D sensor that generates measurement beams having an acute angle of
incidence on the ground area and successively scans the ground area in a
plurality of measurement cycles. Appeal Br. 11.
Appellants further argue that while the Examiner states that the sensor
feature amounts to insignificant extrasolution activity, i.e., mere data
gathering, the Examiner confuses merely gathering the laser/radar data
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reflecting ground position (which the prior art did) with cyclically
scanning laser/radar measurement beams specifically oriented at an acute
angle of incidence in order to generate a unique statistical effect (i.e.,
localized reduction in spatial measured-value density, or shadow regions)
within that ground position data. Id. Appellants argue that the specific use of
the measurement beams in this manner to cause this effect is not
insignificant extrasolution activity because the entire solution is premised on
the recognition that these shadow regions, which were considered a nuisance
at the time, may be used to indicate the presence of objects - resulting in a
quicker and less computationally intensive indication of objects. Id.
Appellants argue that this aspect of the claimed method has not been shown
by the Examiner to be "well-understood, routine, and conventional in the
art" as asserted by the Examiner. Id. Appellants further point out, id., that
the Examiner finds that "the prior art is silent as to producing the measure of
the local roughness of the ground area includes identifying individual area
elements associated with a shadow region resulting from the acute angle of
incidence of the measurement beams" Final Act 7.
Our reviewing court has explained that the Alice test requires a factual
determination as to whether a claim element or combination is conventional.
Berkheimer v. HP Inc., 881 F.3d 1360, 1368---69 (Fed Circ. 2018). Factual
determinations must be made on the basis of the preponderance of the
evidence of record. Because the Examiner has not directed our attention to
credible evidence of record that these particular steps were conventional, the
Examiner's analysis regarding step two of the Alice framework is based on
reversible error. We thus reverse the rejection.
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DECISION
The rejection is REVERSED.
ORDER
REVERSED
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