Intel Corporation

Patent Trials and Appeals Board

Feb 19, 2020

15398042 - (D) (P.T.A.B. Feb. 19, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/398,042 01/04/2017 Franz P. Clarberg ITL.2659C1US
(P42561USC)
3737
47795 7590 02/19/2020
TROP, PRUNER & HU, P.C.
PO Box 41790
HOUSTON, TX 77241
EXAMINER
COBB, MICHAEL J
ART UNIT PAPER NUMBER
2613
NOTIFICATION DATE DELIVERY MODE
02/19/2020 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):
Inteldocs_docketing@cpaglobal.com
tphpto@tphm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANZ P. CLARBERG
Appeal 2019-000759
Application 15/398,042
Technology Center 2600
Before JON M. JURGOVAN, MICHAEL M. BARRY, and
SCOTT RAEVSKY, Administrative Patent Judges.
RAEVSKY, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 25–36. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “Applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Intel
Corporation. Appeal Br. 3.
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Application 15/398,042

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CLAIMED SUBJECT MATTER
The claims relate to graphics processing, and in particular, sampling
using a rasterizer. Spec. ¶¶ 2, 3, 6–7. Claim 25, reproduced below, is
illustrative of the claimed subject matter:
25. An apparatus comprising:
a rasterizer to generate samples over a polygon, the
rasterizer to:
generate a bounded polygon;
rasterize the bounded polygon into a number
of primitives;
rasterize the primitives to the samples; and
determine whether the samples are inside or
outside the polygon; and a storage coupled to said
rasterizer.
REJECTIONS
Claims 25–36 stand rejected under 35 U.S.C. § 101 as directed to a
judicial exception. Final Act. 7.
Claims 25–36 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
obvious over Nehab (“Stratified Point Sampling of 3D Models,” 2004),
Cook (“Stochastic Sampling in Computer Graphics,” 1986), Fatahalian
(“Data-Parallel Rasterization of Micropolygons with Defocus and Motion
Blur, Assn for Computing Machinery, Inc., 59–68 (2009)), and Crow (US
9,117,309 B1, Aug. 25, 2015). Id. at 8.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Arguments not made are waived. See id.
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Rejection under § 101
I. Principles of Law
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described
in Mayo and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with
that framework, we first determine what concept the claim is “directed
to.” See id. at 219 (“On their face, the claims before us are drawn to the
concept of intermediated settlement, i.e., the use of a third party to mitigate
settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010)
(“Claims 1 and 4 in petitioners’ application explain the basic concept of
hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67–68 (1972)).
Concepts determined to be patent eligible include physical and chemical
processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S.
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175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing
India rubber, smelting ores” (id. at 183 n.7 (quoting Corning v. Burden, 56
U.S. 252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221. “A claim that recites an
abstract idea must include ‘additional features’ to ensure ‘that the [claim] is
more than a drafting effort designed to monopolize the [abstract idea].’” Id.
(alterations in original) (quoting Mayo, 566 U.S. at 77). “[M]erely
requir[ing] generic computer implementation[] fail[s] to transform that
abstract idea into a patent-eligible invention.” Id.
After the docketing of this Appeal, the USPTO published revised
guidance on the application of § 101 (“Guidance”). See, e.g., USPTO, 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Revised Guidance”); USPTO, October 2019 Update: Subject Matter
Eligibility (Oct. 17, 2019) (“Update”), 84 Fed. Reg. 55942 (Oct. 18, 2019)
(notice).
Under the Guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activities such as a fundamental economic practice,
or mental processes); and
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(2) additional elements that integrate the judicial exception into
a practical application (see Manual of Patent Examining Procedure
“MPEP” §§ 2106.05(a)–(c), (e)–(h) (9th ed. Rev. 08.2017, Jan.
2018)).
See Guidance, 84 Fed. Reg. at 52–55. Only if a claim (1) recites a judicial
exception and (2) does not integrate that exception into a practical
application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional activity” in the field
(see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Guidance, 84 Fed. Reg. at 56.

II. Step 2A, Prong One (Judicial Exception)
The Examiner determines that claim 25 is directed to an abstract idea,
identifying the abstract idea by quoting the majority of the claim limitations.
Final Act. 7. Appellant contends that the claims relate to improving
computer technology and are therefore not abstract. Appeal Br. 6. We agree
the claims do not recite an abstract idea.
The Specification describes an improvement to sampling for computer
graphics processing. Spec. ¶¶ 2–3, 6, 7. The Specification explains that
many sampling methods generate samples using graphics processing unit
(GPU) shader cores. Id. ¶ 6. In contrast, the Specification states, “we
exploit the built-in rasterizer to perform all or parts of the sampling
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operations.” Id. As a result, sample generation uses power more efficiently
than in prior systems. Id. Claim 25 specifically recites “a rasterizer to
generate samples over a polygon,” thereby tying the claim to the specific
technical benefits described in the Specification.
We disagree with the Examiner that claim 25, including this
limitation, represents an abstract idea. The Examiner merely states the
abstract idea is what is recited in the claim. Final Act. 7. The Examiner,
however, does not identify an abstract idea in the claim that falls in one of
the enumerated categories of abstract ideas. Revised Guidance, 84 Fed. Reg.
at 52. Specifically, the Examiner points to nothing in claim 25 that recites a
mathematical concept, such as a mathematical relationship between
variables or numbers, a mathematical formula or equation, or mathematical
calculations. See Update, 3–4. Nor has the Examiner demonstrated that the
claim recites organizing human activities or mental processes. Based on the
record before us, we are, therefore, persuaded that the Examiner erred at
Step 2A, Prong 1 in determining that claim 25 recites an abstract idea.
Accordingly, we reverse the Examiner’s rejection of claim 25 and its
dependent claims, as well as similar claims 29 and 33 and their dependent
claims, under 35 U.S.C. § 101.

Rejection under § 103
Appellant contends that the combination of Nehab, Cook, Fatahalian,
and Crow fail to teach or suggest “a rasterizer to generate samples,” as
recited in claim 25. Appeal Br. 7–8; Reply Br. 2–4. Appellant contends that
“in the prior art, the samples were generated before rasterization.” Appeal
Br. 7. Specifically, Appellant contends that in Nehab, “the primitives were
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defined before rasterization.” Id. at 8. Appellant also contends that
Fatahalian “teaches only a conventional rasterizer that receives already
generated samples.” Id. Appellant points to Fatahalian’s teaching that
“[m]odern rasterizers leverage efficient data-parallel execution by testing a
block of samples” as indicative of using, not generating samples. Id.; see
also id. at 7 (“[T]he cited references use samples in rasterization but there is
no indication that the samples were ever generated by the rasterizer.”).
The Examiner finds that Nehab teaches “a rasterizer to generate
samples over a polygon” by disclosing “a form of stochastic sampling.”
Ans. 16 (citing Nehab, 1–2) (emphasis omitted); see also Final Act. 5, 8–9.
However, the Examiner later concedes that Nehab “does not explicitly
mention a . . . rasterizer” and instead relies on Fatahalian as disclosing a
rasterizer. Final Act. 10–12 (citing Fatahalian §§ 2.1, 2.2, 3.1, 3.2.1, 3.2.2,
5.2). The Examiner relies on Fatahalian’s teaching that “[m]odern
rasterizers leverage efficient data-parallel execution by testing a block of
samples.” Final Act. 12 (citing Fatahalian § 2.1). The Examiner concludes
that it would have been obvious to combine Nehab, Fatahalian, and the other
references “to incorporate different operations in a rasterizer as taught by
Fatahalian into Nehab’s modified stratified point sampling system.” Id. at
12.
We agree with Appellant. First, the Examiner concedes that Nehab
does not disclose a rasterizer and relies on Fatahalian for that teaching.
Final Act. 10–12. But we agree with Appellant that Fatahalian teaches a
rasterizer that only receives samples, rather than generating samples. See
Appeal Br. 8. Fatahalian discloses that modern rasterizers “test[]” a block of
samples, which presupposes that those samples have already been generated.
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See Fatahalian §§ 2.1, 3.1. It is improper to base a conclusion of
obviousness upon facts gleaned only through hindsight, as the Examiner has
done here. The invention must be viewed not after the blueprint has been
drawn by the inventor, but as it would have been perceived in the state of the
art that existed at the time the invention was made. Sensonics Inc. v.
Aerosonic Corp., 81 F.3d 1566, 1570 (Fed. Cir. 1996) (citing Interconnect
Planning Corp. v. Feil, 774 F.2d 1132, 1138 (Fed. Cir. 1985)).
We note the Examiner has not relied on any of the other cited
references to teach this element. Accordingly, we do not sustain the
Examiner’s rejection of claim 25 and its corresponding dependent claims.
Similarly, each of claims 29 and 33 recites similar language to the above-
quoted limitation of claim 25. Accordingly, we also do not sustain the
Examiner’s rejections of claims 29 and 33 and their corresponding
dependent claims.
CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
25–36 101 Eligibility 25–36
25–36 103 Nehab, Cook,
Fatahalian, Crow
25–36
Overall
Outcome
25–36
REVERSED