Jason Meyer et al.

Patent Trials and Appeals Board

Sep 30, 2019

14464293 - (D) (P.T.A.B. Sep. 30, 2019)

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.
14/464,293 08/20/2014 Jason MEYER 83448980 3308
28395 7590 09/30/2019
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
MOTT, GENNA M
ART UNIT PAPER NUMBER
3662
NOTIFICATION DATE DELIVERY MODE
09/30/2019 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JASON MEYER, SHIQI QIU, FLING TSENG, and
SANGEETHA SANGAMESWARAN1
Appeal 2017-010112
Application 14/464,293
Technology Center 3600
Before BRETT C. MARTIN, MICHELLE R. OSINSKI, AND
PAUL J. KORNICZKY, Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge MARTIN.
Opinion Dissenting-in-Part filed by Administrative Patent Judge OSINSKI.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1–19. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 The real party in interest is Ford Global Technologies, LLC. App. Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed “to battery-powered vehicle powertrain
control systems.” Spec. ¶ 1. Claim 1, reproduced below, is illustrative of
the claimed subject matter:
1. A distance indicator system for a vehicle comprising:
a display configured to display an available driving
distance;
and a controller programmed to output to the display the
available driving distance that is based on an expected energy
consumption rate and an expected driving distance each
corresponding to a day of the week of a current drive cycle and
derived from a weighted function of previous drive cycle data.
App. Br. 13 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner is:
Watanabe
Zuta
Pandit
Wang
Mori
US 2004/0080434 A1
US 2007/0262855 A1
US 2011/0087390 A1
US 2013/0073113 A1
US 2014/0336965 A1
Apr. 29, 2004
Nov. 15, 2007
Apr. 14, 2011
Mar. 21, 2013
Nov. 13, 2014

REJECTIONS
Claims 1–11 and 16–19 stand rejected under 35 U.S.C. § 101. Final
Act. 6.
Claims 7, 9, 11, and 18 stand rejected under 35 U.S.C. § 102(a)(1) as
being anticipated by Wang. Final Act. 7.
Claims 1–3, 6, and 16 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Wang, Zuta, and Watanabe. Final Act. 9.
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Claims 4 and 5 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Wang, Zuta, Watanabe, and Pandit. Final Act. 12.
Claim 8 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Wang and Zuta. Final Act. 14.
Claim 10 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Wang. Final Act. 15.
Claims 12–15 and 19 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Wang and Mori. Id.
Claim 17 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Wang, Zuta, Watanabe, and Mori. Final Act. 17.

OPINION
Patent-Eligible Subject Matter
Standard for Patent Eligibility
In issues involving subject matter eligibility, our inquiry focuses on
whether the claims satisfy the two-step test set forth by the Supreme Court in
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014). The Supreme Court
instructs us to “first determine whether the claims at issue are directed to a
patent-ineligible concept,” id. at 216–18, and, in this case, the inquiry
centers on whether the claims are directed to an abstract idea. If the initial
threshold is met, we then move to the second step, in which we “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. at 217 (quoting Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)).
The Supreme Court describes the second step as a search for “an ‘inventive
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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. (quoting Mayo, 566 U.S. at 72–
73).
The USPTO recently published revised guidance on the application of
§ 101. USPTO’s January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance (“Memorandum”). Under that 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 activity such as a fundamental economic practice, or
mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)-(c), (e)-(h)).
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” 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 Memorandum.
Examiner’s Findings and Conclusion
The Examiner rejects claims 1–11 and 16–19 as not directed to
patentable subject matter and identifies the alleged abstract idea as “an
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available driving distance based on an expected energy consumption rate
and an expected driving distance each corresponding to the day of the week
of the current drive cycle.” Final Act. 6. The Examiner then concludes that
the claims “amount to no more than a generic computer performing generic
computer functions that are well understood, routine and conventional
activities.” Id.
Appellant’s Contentions
Appellant contends that “[t]he claim recites a very specific way of
determining the available driving distance” that “does not in any way ‘tie
up’ any mathematical relationship.” Br. 5. Appellant is correct.
Appellant’s method relies on two factors. First, it relies on expected energy
consumption and then also expected driving distance based upon the day of
the week. In this manner, the method does not simply calculate based on
some average expected distance, but specifically looks at expected distance
based on the day of the week to determine a more focused available driving
distance. As they further note, “[c]laim 1 further requires that the available
driving distance is derived from a weighted function of previous drive cycle
data.” Id. This alone is sufficient to overcome the Examiner’s rejection in
that the claims require further data manipulation to achieve a result that is
narrower than the alleged abstract idea. There could be many ways to
calculate an expected driving distance, but the method chooses to base the
ultimate determination upon previous drive cycle data. As such, Appellant
is correct that the claims do not tie up a mathematical relationship, but picks
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and chooses from a multitude of factors that could result in differing
outcomes.
Further, the Examiner appears to equate any calculation with a
mathematical relationship. Although a calculation is involved in the
method, the method goes beyond a generic calculation and, again, picks and
chooses from many different factors that could be used to determine an
available driving distance. Ultimately, the calculation goes further than an
abstract idea because it is specific to calculating remaining driving distance
and does so in a specific way that does not tie up the alleged abstract idea.
Accordingly, we do not sustain this rejection.
Wang
All of the prior art rejections rely on Wang either alone or in
combination with other references. Appellant focuses on alleged
deficiencies in Wang and Mori, but does not argue any of the secondary
references. Accordingly, our decision rests on whether the Examiner has
properly applied Wang and Mori in rejecting the claims.
First, regarding claim 7, Appellant argues that Wang is defective
because it “does not teach a weighted function of previous drive cycle data
as claimed.” Br. 6. Appellant alleges that this is so because “[t]he
weighting factor of Wang is applied after any previous drive cycle data is
evaluated.” Id. Appellant also argues that Wang’s calculations “are
associated with future driving patterns, not previous drive cycle data as
claimed.” Id. at 7. As the Examiner points out, however, although some
quantities are associated with future driving patterns, other quantities “are
the average efficiencies previously observed for each respective pattern” in
that they are derived by running an actual vehicle test, which amounts to a
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previous drive cycle. Ans. 5. As to the timing of the weighing, the
Examiner is correct that “the claim requires the function to be weighted, not
the drive cycle data.” Ans. 4. As such, Appellant’s argument is inapposite.
As to claim 12, Appellant argues that “the combination of Wang and
Mori does not teach or suggest that the energy consumption data is weighted
such that more recent values have greater weight as claimed.” Br. 10. As
the Examiner points out, however, Wang teaches “weighted energy
consumption data” and Mori “teaches a ‘forgetting factor’ which weights
recent values more heavily than older values and does so for the purpose of
preventing the influence of accidentally generated data from having long-
lasting effects.” Ans. 8 (citing Mori ¶ 59). The Examiner concludes that it
would have been obvious to modify Wang “by weighting more recent values
with a greater weight in order to prevent accidentally generated/erroneous
data from having long-lasting effects as taught by Mori.” Ans. 8–9. We
agree with the Examiner that Mori sufficiently discloses providing greater
weight to more recent values. Appellant also argues that
“charging/discharging from the charge/discharge device of Mori does not
take place during a drive cycle as defined by the present invention.” Br. 10.
The Examiner, however, does not use Mori for this feature, but finds it in
Wang. Ans. 9. Thus, Appellant’s argument is inapposite. Appellant
similarly argues the deficiency of the combination by pointing out features
of the combination that are not present in Mori when, again, the Examiner
has utilized Wang for the allegedly deficient features. Accordingly, we
sustain the rejection of claim 12.
As for the remaining independent claims, Appellant merely restates
the same arguments made with respect to claim 7, which we already have
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rejected above. Appellant makes no specific arguments as to any of the
secondary references. Accordingly, we sustain the Examiner’s prior art
rejections of claims 1–19.

DECISION
The Examiner’s rejections are AFFIRMED.
More specifically, we REVERSE the Examiner’s § 101 rejection and
AFFIRM all of the prior art rejections.
FINALITY AND RESPONSE
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.
§ 1.136(a)(1)(iv).
AFFIRMED
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JASON MEYER, SHIQI QIU, FLING TSENG, AND
SANGEETHA SANGAMESWARAN
Appeal 2017-010112
Application 14/464,293
Technology Center 3600
Before BRETT C. MARTIN, MICHELLE R. OSINSKI, AND
PAUL J. KORNICZKY, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge, dissenting-in-part.
I respectfully dissent from the majority’s decision to reverse the
Examiner’s rejection of claims 1–11 and 16–19 under 35 U.S.C. § 101. The
Examiner determines that the output recited in independent claim 1
“amounts to a mathematical relationship.” Final Act. 6. The output is the
“available driving distance that is based on an expected energy consumption
rate and an expected driving distance each corresponding to a day of the
week of a current drive cycle and derived from a weighted function of
previous drive cycle data.” Br. 13 (Claims App.). I agree with the Examiner
that such a limitation pertains to a mathematical relationship at least in that it
describes that the expected energy consumption rate and expected driving
distance are derived from a weighted function of previous data, and a
weighted function is a mathematical device used to give some elements
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more “weight” or influence on the result than other elements in a same set.
The Federal Circuit has identified mathematical concepts as representing
abstract ideas. See, e.g., SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161,
1163 (Fed. Cir. 2018) (holding that claims to a “series of mathematical
calculations based on selected information” are directed to abstract ideas);
Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1350
(Fed. Cir. 2014) (holding that claims to a “process of organizing information
through mathematical correlations” are directed to an abstract idea). I
therefore view claim 1 as reciting a mathematical relationship as identified
in the Revised Guidance, and thus, an abstract idea.
Having found that claim 1 recites a judicial exception, namely, a
mathematical relationship, the Office guidance instructs the next step is a
determination whether the claim recites “additional elements that integrate
the exception into a practical application” (see MPEP §§ 2106.05(a)–(c),
(e)–(h)). See Memorandum.
Claim 1 recites “a display configured to display an available driving
distance” and “a controller programmed to output to the display” the above-
referenced limitation that recites the mathematical relationship. The display
is recited at a high level of generality, i.e., as a generic display performing a
generic display function of being able to display output. The controller is
also recited at a high level of generality, i.e., as a generic controller capable
of outputting certain information to the display. The recitation of a display
and a controller programmed to output to the display does not integrate the
abstract idea into a practical application. More particularly, the claim stops
at the controller being programmed to output to the display and does not
recite that the particular output is actually displayed. Thus, the additional
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elements do not actually recite a specific manner of using the output in a
system that provides a specific improvement over prior systems, resulting in
an improved system. Instead, the generic limitations are no more than
instructions to apply the judicial exception (i.e., a mathematical relationship)
using generic computer elements. The generic “display” and “controller”
limitations do not integrate the abstract idea into a practical application
because they do not impose any meaningful limits on practicing the abstract
idea. See MPEP § 2106.05(f) (“Use of a computer or other machinery in its
ordinary capacity for . . . tasks (e.g., to receive, store, or transmit data) or
simply adding a general purpose computer or computer components after the
fact to an abstract idea . . . does not provide significantly more.”).
I have considered Appellant’s argument that the “very specific way of
determining the available driving distance” set forth in the claims “does not
in any way ‘tie up’ any mathematical relationships.” Br. 5. I have also
considered Appellant’s arguments that if claim 25 does not monopolize or
preempt an abstract idea, it is patent-eligible. Id. at 10–13. Although
preemption is a necessary clue for patent eligibility, it is not sufficient for
patent eligibility. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715–
16 (Fed. Cir. 2014) (explaining that the court did not agree with Ultramercial
“that the addition of merely novel or non-routine components to the claimed
idea necessarily turns an abstraction into something concrete”). As the
McRO court explicitly recognized, “the absence of complete preemption
does not demonstrate patent eligibility.” See McRO, Inc. v. Bandai Namco
Games Am. Inc., 837 F.3d 1299, 1315 (Fed. Cir. 2016) (quoting Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)).
“Where a patent’s claims are deemed only to disclose patent ineligible
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subject matter” under the Alice/Mayo framework, “preemption concerns are
fully addressed and made moot.” Ariosa, 788 F.3d at 1379; see also OIP
Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015)
(“[T]hat the claims do not preempt all price optimization or may be limited
to price optimization in the e-commerce setting do not make them any less
abstract.”).
In short, the additional elements of a display and a controller
programmed to output to the display (1) do not improve the functioning of a
computer or other technology, (2) are not applied with any particular
machine, (3) do not effect a transformation of a particular article to a
different state, and (4) are not applied in any meaningful way beyond
generally linking the use of the judicial exception to a particular
technological environment. See MPEP §§ 2106.05(a)–(c), (e)–(h).
Consequently, the claimed invention does not integrate the abstract idea into
a “practical application,” as that phrase is used in the Revised Guidance.
The next consideration is whether claim 1 recites any elements,
individually or as an ordered combination, that transform the abstract idea into
a patent-eligible application, e.g., by providing an inventive concept. Alice,
573 U.S. at 217–18. The Examiner determines that:
[t]he remaining elements of the claim are a controller
programmed to store data and output the available driving
distance via a display. Viewed as a whole, these elements
amount to no more than a generic computer performing generic
computer functions that are well understood, routine and
conventional activities previously known to the industry and are
not enough to qualify as “significantly more” than the abstract
idea.
Final Act. 6.
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I agree with the Examiner. The display and controller of claim 1 are
invoked as conventional tools. The display is recited for its generic function
of displaying output. The controller is similarly recited for its generic
function of executing program instructions and operations. Apart from
being instructed to display output corresponding to the mathematical
relationship discussed above, the controller only serves to perform well-
understood functions (e.g., receiving and analyzing data). See, e.g., Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016)
(“[T]he claims’ invocation of computers, networks, and displays does not
transform the claimed subject matter into patent-eligible applications. The
claims at issue do not require any nonconventional computer, network, or
display components, or even a ‘non-conventional and non-generic
arrangement of known, conventional pieces,’ but merely call for
performance of the claimed information collection, analysis, and display
functions ‘on a set of generic computer components’ and display devices.
Bascom [Global Internet Servs., Inc. v. AT&T Mobility, LLC], 827 F.3d
[1341,] 1349–52 [Fed. Cir. 2016].”).
In my view, claim 1 fails to add a specific limitation beyond the
judicial exception that is not “well-understood, routine, conventional” in the
field, but instead “simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception.” See Memorandum. That is, Appellant
has not persuaded me that claim 1 is directed to a specific application
designed to achieve an improved technological result, as opposed to being
directed to merely ordinary functionality of a display and controller to apply
an abstract idea. The invocation of a “display” and a “controller” is
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insufficient to transform the abstract idea into a patent-eligible application.
For the reasons discussed above, I find no element or combination of
elements recited in claim 1 that contains any “inventive concept” or adds
anything “significantly more” to transform the abstract concept into a patent-
eligible application. Alice, 573 U.S. at 221.
Appellant also argues that “the claims include additional features that
are significantly more than the abstract idea. For example, each of the
claims includes the feature that the distance is derived from a weighted
function of previous drive cycle data.” Br. 5. This argument is unpersuasive
in that Appellant points only to the identified judicial exception of a
mathematical relationship, whereas this step is a search for an element or
combination of elements that ensures that the claim is more than the
ineligible mathematical relationship.
Accordingly, I would sustain the Examiner’s decision to reject claim 1
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter. I
would also sustain the Examiner’s decision to reject claims 2–11 and 16–19
as falling with independent claim 1 based on Appellant’s decision to argue
these claims as a group. See 37 C.F.R. § 41.37(c)(1)(iv); Br. 4–5.