Jose de Corral

Patent Trials and Appeals Board

Dec 29, 2021

2020005529 (P.T.A.B. Dec. 29, 2021)

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.
13/702,169 12/05/2012 Jose de Corral 8185.0050 4219
160377 7590 12/29/2021
Kacvinsky Daisak Bluni PLLC (8185)
2601 Weston Parkway
Suite 103
Cary, NC 27513
EXAMINER
ALKAFAWI, EMAN A
ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
12/29/2021 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@kdbfirm.com
ehysesani@kdbfirm.com
mbotnaru@kdbfirm.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOSE DE CORRAL
____________

Appeal 2020-005529
Application 13/702,169
Technology Center 2800
____________

Before JEFFREY R. SNAY, LILAN REN, and JANE E. INGLESE,
Administrative Patent Judges.

SNAY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 46–76. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies Waters Technologies Corporation as the real
party in interest. Appeal Br. 3.
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BACKGROUND
The subject matter on appeal relates to analysis of compounds, such as
by mass spectrometry. Spec. 1. Claims 46, 52, 58, and 65 are independent
and reproduced below.
46. A method for processing data comprising:
receiving scans of data generated via sample analysis,
each of the scans comprising a set of data elements each
associating an ion intensity count with a plurality of dimensions
including a retention time dimension and a mass to charge ratio
dimension; and
detecting one or more peaks in the scans.

52. A method for processing data from sample analysis
comprising:
receiving one or more spectra generated via a mass
spectrometry experiment; and
analyzing the one or more spectra to generate a peak list
of one or more ion peaks identified in the one or more spectra
via performing, in parallel, at least a first filtering step and a
second filtering step.

58. An apparatus, comprising:
a serial processing unit to:
access raw data from a mass analysis system while
the raw data is being generated by the mass analysis
system, and
provide the raw data to at least one memory
operably coupled to the serial processing unit; and
a parallel processing unit operably coupled to the at least
one memory to, while the raw data is being provided to the at
least one memory, perform at least one parallel data processing
function on the raw data in parallel to generate a peak list.

65. A method, comprising:
providing a serial processing unit to:
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access scans of data from a mass analysis system
while the scans are being generated by the mass analysis
system, and
provide the scans to at least one memory operably
coupled to the serial processing unit; and
providing a parallel processing unit operably coupled to
the at least one memory to, while the scans are being provided
to the at least one memory, perform at least one parallel data
processing function on the scans in parallel to generate a peak
list.

Appeal Br. 19–22 (Claims Appendix). Each remaining claim on appeal
depends from claim 46, 52, 58, or 65.

REJECTIONS
I. Claim 46 stands rejected under 35 U.S.C. § 101 as being directed to
patent-ineligible subject matter.
II. Claims 53 and 55 stand rejected under 35 U.S.C. § 112, second
paragraph, as indefinite.
III. Claims 46, 48, 53, and 56 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Gorenstein.2
IV. Claims 47, 49–52, 54, 57–59, 61–66, and 68–76 stand rejected under
35 U.S.C. § 102(b) as anticipated by Gorenstein or, alternatively, under 35
U.S.C. § 103(a) as unpatentable over Gorenstein and Cameron.3
V. Claim 55 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Gorenstein, Cameron, and Webb.4

2 US 2009/0294645 A1, published December 3, 2009.
3 US 2005/0253061 A1, published November 17, 2005.
4 US 2010/0332953 A1, published December 30, 2010.
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VI. Claims 60 and 67 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Gorenstein, Cameron, and Satulovsky.5

DISCUSSION
Rejection I: ineligibility under 35 U.S.C. § 101
The Examiner rejects claim 46 under 35 U.S.C. § 101 as being
directed to a judicial exception—namely, an abstract idea without
significantly more. Final Act. 2.
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. Alice, 573 U.S. 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 Alice, 573 U.S. 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.”).

5 US 2010/0288918 A1, published November 18, 2010.
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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 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 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))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “a claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, and this principle cannot be circumvented by attempting
to limit the use of the formula to a particular technological environment.”
Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace
that an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
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
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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 (quotation marks omitted). “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. (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.
The PTO published revised guidance on the application of § 101. See
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Guidance”), as updated in October 2019. Under Step 1 of the
Guidance, we determine whether the claimed subject matter falls within the
four statutory categories: process, machine, manufacture, or composition of
matter. Step 2A of the Guidance is two-pronged, under which we look to
whether the claim recites:
(1) any judicial exception, 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) (9th ed. Rev.
10.2019, rev. June 2020)).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then, under Step
2B, look to whether the claim adds a specific limitation beyond the judicial
exception that is not “well-understood, routine, conventional” in the field
(see MPEP § 2106.05(d)); or simply appends well-understood, routine,
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conventional activities previously known to the industry, specified at a high
level of generality, to the judicial exception. See Guidance.
We have considered the Examiner’s findings and the Appellant’s
arguments in light of the controlling caselaw and Guidance, and are not
persuaded the Examiner erred in rejecting the claims under 35 U.S.C. § 101.

Guidance Step 1
There is no dispute that claim 46 is within a statutory category. Claim
46 recites a method.

Guidance Step 2A, Prong 1
Under Step 2A of the Guidance, we first consider whether the
Examiner erred in determining that the claim recites a judicial exception.
The Examiner determined that claim 46 recites an abstract idea. Final
Act. 2–3. For the reasons explained below, we see no error in that
determination.
The Guidance identifies mental processes as one of the enumerated
groupings of abstract ideas. Guidance, 84 Fed. Reg. at 52. A claim recites a
mental process when it encompasses acts a human can perform using the
human’s mind or pen and paper. See, e.g., CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1372–3 (Fed. Cir. 2011) (determining that a
claim whose “steps can be performed in the human mind, or by a human
using a pen and paper” is directed to an unpatentable mental process). This
is true even if the claim recites use of a generic computer component to
perform the process steps. See, e.g., Versata Dev. Grp., Inc. v. SAP Am.,
Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (“Courts have examined claims
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that required the use of a computer and still found that the underlying,
patent-ineligible invention could be performed via pen and paper or in a
person’s mind.”); see also Guidance, 84 Fed. Reg. at 52 n.14 (emphasis
omitted) (“If a claim, under its broadest reasonable interpretation, covers
performance in the mind but for the recitation of generic computer
components, then it is still in the mental process category unless the claim
cannot practically be performed in the mind.”).
In this case, claim 46 recites “detecting one or more peaks.” The
claim does not require any particular machine or device in connection with
the above-quoted detecting step. A person could perform the step entirely in
the mind by mentally viewing printed data scans. See, e.g., Spec. 97 (“[T]he
peak list may be a list or table of data.”). Thus, in the context of claim 46,
the step of “detecting” can reside solely within a human thought process.
Accordingly, we conclude that claim 1 recites a mental process, which is
identified in the Guidance as an abstract idea.

Guidance Step 2A, Prong 2
Having determined that the claims recite a judicial exception, our
analysis under the Guidance turns to determining whether there are
additional elements that integrate the exception into a practical application.
See MPEP § 2106.05(a)–(c), (e)–(h). The additional element in claim 46 is
“detecting one or more peaks in the scans.”
We determine that claim 46 does not recite additional elements that
integrate the judicial exception into a practical application. The recited
“receiving” step involves obtaining data recited at a high level of generality.
See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir.
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2016); see also SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168 (Fed.
Cir. 2018) (“As many cases make clear, even if a process of collecting and
analyzing information is ‘limited to particular content’ or a particular
‘source,’ that limitation does not make the collection and analysis other than
abstract.” (quoting Elec. Power Grp., 830 F.3d at 1353, 1355 (citing cases)).
In this case, the recited receiving step merely constitutes receiving data
scans. Receiving data scans also can be performed in a person’s mind, such
as by viewing printed scans. As such, the receiving step also does not
“‘transform the nature of the claim’ into a patent-eligible application.” See
Alice, 573 U.S. at 217; see also Guidance 84 Fed. Reg. at 55 n.24 (“USPTO
guidance uses the term ‘additional elements’ to refer to claim features,
limitations, and/or steps that are recited in the claim beyond the identified
judicial exception.”) (some emphasis omitted).
Appellant argues claim 46 could not be performed as a mental process
because the detected peaks are from scans “in the form of data elements
associating an ion intensity count with a plurality of dimensions, including a
retention time dimension and a mass to charge ratio dimension.” Appeal Br.
15–16. Appellant does not persuasively argue why the step of receiving
such data scans could not be performed merely by viewing them.
Appellant also argues that the claims are not directed to an abstract
idea because the focus of the subject claims is on improving the technology
of processing analytical data generated via sample analysis. Appeal Br. 16–
17 (citing McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299
(Fed. Cir. 2016). The claims at issue in McRO were “directed to the creation
of something physical—namely, the display of ‘lip synchronization and
facial expressions’ of animated characters on screens.” SAP Am., 898 F.3d
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at 1167 (citing McRO, 837 F.3d at 1313). Here, the focus of the claims is
not an improvement in the creation of something physical but purportedly an
improvement in the abstract idea of identifying peaks in data scans.
Although claim 46 recites a “method for processing data,” Appellant does
not explain how the claim requires anything more than observing data and
identifying data peaks. Such steps involving observation and comparison of
values can be performed in a person’s mind and, therefore, does not
“‘transform the nature of the claim’ into a patent-eligible application.” See
Alice, 573 U.S. at 217; see also Guidance, 84 Fed. Reg. at 55 n.24.
“[M]erely limiting the field of use of the abstract idea to a particular existing
technological environment does not render the claims any less abstract.”
Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1259 (Fed.
Cir. 2016). We are not persuaded that the claimed method effects an
improvement in computer-technology or any other technology or technical
field. See MPEP § 2106.05(a).
Nor does the claimed method apply the judicial exception using any
particular machine. See MPEP § 2106.05(b). Claim 46 lacks any recitation
to a particular machine or apparatus. Appellant does not purport that the
claim adds any other meaningful (technological) limitation, i.e., limitations
beyond linking the use of the abstract idea to generic technology. See MPEP
§ 2106.05(c), (e); see also id. at (f)–(h) (mere instruction to apply a judicial
exception (f), insignificant extra-solution activity (g), and generally
indicating a field of use or technological environment in which to apply a
judicial exception (h), are insufficient to integrate an abstract idea into a
practical application).
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For the foregoing reasons, we determine that claim 1 does not
integrate the judicial exception into a practical application.

Guidance Step 2B
In Alice step two, we consider the elements of the claim, both
individually and as an ordered combination, to assess whether the additional
elements transform the nature of the claim into patent-eligible subject
matter. Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat.
Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014). “To save a patent at step two,
an inventive concept must be evident in the claims.” RecogniCorp, LLC v.
Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017). “An inventive concept
that transforms the abstract idea into a patent-eligible invention must be
significantly more than the abstract idea itself, and cannot simply be an
instruction to implement or apply the abstract idea on a computer.”
BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341,
1349 (Fed. Cir. 2016). According to the Guidance, “simply append[ing]
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality,” indicates that an inventive
concept is absent. Guidance, 84 Fed. Reg. at 56.
In this context, we also look to see if the additional elements are more
than “well-understood, routine, and conventional” so as to amount to an
inventive concept. Conversely, we consider whether these additional
elements simply append “well-understood, routine, and conventional”
elements, particularly at a high level of generality, to the judicial exception.
Appellant does not point to evidence of record that would tend to
show that the step of “detecting” in claim 46 is more than well-understood,
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routine, and conventional. To the contrary, the Specification acknowledges
“peaks in the raw data may be identified and may be output in a list.” Spec.
97. Figure 5 of the Specification, characterized as “a flow chart for a
method for processing data according to an embodiment of the present
invention” (Spec. 12), identifies step 508 merely as “DETECT PEAKS.”
For the foregoing reasons, we determine that the additional elements
recited in claim 1 do not amount to significantly more than the abstract idea
itself.
For the reasons discussed above and by the Examiner, we are not
persuaded of reversible error in the Examiner’s rejection of claim 46.
Accordingly, the rejection under 35 U.S.C. § 101 is sustained.

Rejection II: indefiniteness under 35 U.S.C. § 112
The Examiner rejects claims 53 and 55 under 35 U.S.C. § 112, second
paragraph, as indefinite. The Examiner finds the phrases “the first filtering”
and “the second filtering” recited in each of these claims lack antecedent
basis in the claims.
Appellant argues one of ordinary skill in the art would understand the
meaning of the recited first and second filtering steps when viewed in light
of the Specification. Appeal Br. 14. Appellant’s argument does not address
the basis of the Examiner’s rejection. Each of claims 53 and 55 directly
depends from claim 46, which does not refer to either a first or a second
filtering. As such, the phrases “the first filtering” and “the second filtering”
in claims 53 and 55 lack antecedent basis and, therefore, ambiguously refer
back to particular first and second filterings that are not previously
identified.
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The rejections under 35 U.S.C. § 112 are sustained.

Rejection III: anticipation under 35 U.S.C. § 102(b)
The Examiner rejects each of claims 46, 48, 53, and 56 as anticipated
by Gorenstein. Appellant argues only claim 46. See Appeal Br. 13–14.
Claims 48 and 56 stand or fall with claim 46. We address claim 53
separately below.
Appellant argues “the system of Gorenstein does not receive,
generate, or otherwise process data in which each scan of data includes an
ion intensity count associated with a retention time dimension and a mass to
charge ratio dimension.” Appeal Br. 13.
The Examiner finds Gorenstein describes receiving data scans which
include information identified in Gorenstein as ion intensity bin, which the
Examiner finds is encompassed by the recited ion intensity count. Final Act.
4. The Examiner also finds Gorenstein’s data scans include information
identified as m/z ratio, which the Examiner finds represent the recited mass
to charge ratio and retention time dimension. Id. The Examiner reiterates
these findings in the Answer. Ans. 19. Appellant does not present argument
that addresses the Examiner’s findings.6 As such, Appellant’s statement that
the above-mentioned features are not described by Gorenstein are not
persuasive of error in the Examiner’s rejection and articulated findings on
which the rejection is based.
The rejection of claims 46, 48, and 56 under 35 U.S.C. § 102(b) is
sustained.

6 No Reply Brief has been received.
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Claim 53
Because we have sustained the Examiner’s indefiniteness rejections,
we reverse, pro forma, the Examiner’s anticipation rejection as applied to
claim 53. See In re Steele, 305 F.2d 859 (CCPA 1962).

Rejection IV: anticipation/obviousness
The Examiner rejects each of claims 47, 49–52, 54, 57–59, 61–66, and
68–76 as anticipated by Gorenstein or, in the alternative, obvious over
Gorenstein and Cameron. With regard to each rejected claim, and relevant
to Appellant’s arguments on appeal, the Examiner finds Gorenstein discloses
receiving mass spectrometry spectra data from a mass spectrometer, storing
the received data to a memory, and processing rank-1 and rank-2 filter
techniques to generate a convolution matrix of the filtered data. Final Act.
6–11. The Examiner finds that Gorenstein discloses parallel processing in
that data convolution is disclosed as being performed at the same time
spectra data is being acquired. Id. at 7. Alternatively, the Examiner finds
Cameron teaches improving mass spectrometry analysis by performing
multiple parallel scans of a sample under different process conditions, and
that one of ordinary skill would have found it obvious to apply such parallel
scans in Gorenstein for the same purpose. Id. at 7–8.

Claims 52, 58, and 65
Appellant presents essentially the same arguments with regard to each
of claims 52, 58, and 65. Appellant contends Gorenstein’s teaching of data
processing in real time, meaning the filtering processes are performed
simultaneously with the mass spectra data acquisition, is not the same as
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parallel processing. E.g. Appeal Br. 12 (“[P]erforming functions using real-
time data does not equate to parallel processing.”).
Claim 52 recites receiving one or more mass spectrometry spectra and
“performing, in parallel, at least a first filtering step and a second filtering
step.” Each of claims 58 and 65 recites “a parallel processing unit.”
Appellant does not propose a definition for the term “parallel.” In the
Specification, the term is used to describe processes occurring at the same
time. Spec. 96 (distinguishing serial processing as executing one instruction
at a time from parallel processing as executing multiple instructions at a
time). The Examiner’s interpretation of the term parallel in the claims is
consistent with the above-mentioned use of the term in the Specification.
Appellant does not dispute the Examiner’s finding that Gorenstein discloses
performing data acquisition and data filtering analyses in real time, i.e., at
the same time. As such, Appellant does not persuade us of error in the
Examiner’s finding that Gorenstein discloses data acquisition and data
filtering performed in parallel.
With regard to the Examiner’s alternative rejection based on the
combined teachings of Gorenstein and Cameron, Appellant argues
Cameron’s teaching of parallel sample processing using multiple
instruments is not the same as parallel data processing. E.g. Appeal Br. 13.
However, Appellant does not persuasively show that any of the rejected
claims precludes the recited parallel processes from being performed using
multiple instruments at the same time. In light of our above-noted
interpretation of the term “parallel” in the claims, Appellant’s argument is
not persuasive of reversible error.
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For the foregoing reasons, the Examiner’s rejection of claims 52, 58,
and 65 is sustained. Appellant does not separately argue any of claims 47,
49–51, 54, 57, 59, 61–64, 66, and 68–76. Accordingly, the Examiner’s
rejection as applied to each of these claims also is sustained.

Rejection V: Claim 55
Because we have sustained the Examiner’s indefiniteness rejections,
we reverse, pro forma, the Examiner’s obviousness rejection as applied to
claim 55. See In re Steele, 305 F.2d 859 (CCPA 1962).

Rejection VI: Claims 60 and 67
Appellant does not present arguments addressing the Examiner’s
rejection of claims 60 and 67. Accordingly, the Examiner’s rejection is
sustained.

CONCLUSION
The Examiner’s decision rejecting claims 46–76 is affirmed.

DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
46 101 Eligibility 46
53, 55 112 Indefiniteness 53, 55
46, 48, 53,
56
102(b) Gorenstein 46, 48, 56 53
47, 49–52,
54, 57–59,
61–66,
68–76
102(b)/103(a) Gorenstein,
Cameron
47, 49–52,
54, 57–59,
61–66, 68–
76

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55 103(a) Gorenstein,
Cameron, Webb
55
60, 67 103(a) Gorenstein,
Cameron,
Satulovsky
60, 67
Overall
Outcome
46–76

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED