Ex Parte MUENSTERER et alDownload PDFPatent Trial and Appeal BoardSep 27, 201813193084 (P.T.A.B. Sep. 27, 2018) Copy Citation 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 2 Appeal2017-010645 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 3 Appeal2017-010645 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. 4 Appeal2017-010645 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 5 Appeal2017-010645 Application 13/193,084 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 6 Appeal2017-010645 Application 13/193,084 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. 7 Appeal2017-010645 Application 13/193,084 DECISION The rejection is REVERSED. ORDER REVERSED 8 Copy with citationCopy as parenthetical citation