McQuade, Charles Michael. et al.

Patent Trials and Appeals Board

Dec 27, 2019

15231142 - (D) (P.T.A.B. Dec. 27, 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.
15/231,142 08/08/2016 Charles Michael McQuade ZONA0149 /
990060.402C4
5718
500 7590 12/27/2019
SEED INTELLECTUAL PROPERTY LAW GROUP LLP
701 FIFTH AVE
SUITE 5400
SEATTLE, WA 98104
EXAMINER
FISHER, PAUL R
ART UNIT PAPER NUMBER
3689
NOTIFICATION DATE DELIVERY MODE
12/27/2019 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):
USPTOeAction@SeedIP.com
pairlinkdktg@seedip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD

Ex parte CHARLES MICHAEL MCQUADE, BRETT BRINTON,
and GREG COLVIN
Appeal 2019-002022
Application 15/231,142
Technology Center 3600
Before MURRIEL E. CRAWFORD, PHILIP J. HOFFMANN, and
BRADLEY B. BAYAT, Administrative Patent Judges.
BAYAT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–7 and 9–21, which are all the claims
pending in the application. 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. Appellant identifies the real party in interest as Zonar Systems, Inc.
Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The claims are directed to a cooperative vehicle diagnosis system.
Claim 12, reproduced below, is illustrative of the claimed subject matter:
12. A method, comprising:
defining a ring buffer in a memory of an onboard vehicle
data collection device;
collecting operational data passed through a plurality of
vehicle data inputs;
storing the operational data in the ring buffer such that
current operational data written into the ring buffer overwrites
previous operational data previously written into the ring buffer;
detecting when operational data passed through at least
one of the plurality of vehicle data inputs crosses a threshold;
based on the detecting:
asserting a fault code corresponding to a vehicle-
based device that generated at least some of the operational data
and corresponding to the threshold;
communicating, via a wireless data link, fault code
data associated with the asserted fault code to a remote
computing device; and
communicating, via the wireless data link, a
predetermined amount of operational data from the ring buffer to
the remote computing device, the predetermined amount of
operational data including operational data associated with the
asserted fault code and operational data not associated with the
asserted fault code, wherein the predetermined amount of
operational data includes a first amount of data that was stored in
the ring buffer before the fault code was asserted and a second
amount of data that was stored in the ring buffer after the fault
code was asserted.
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Petchenkine US 6,380,951 B1 Apr. 30, 2002
Lowrey US 2002/0133273 A1 Sept. 19, 2002
Sowa US 2006/0089767 A1 Apr. 27, 2006
Louch US 2008/0167758 Al July 10, 2008
REJECTIONS
Claims 1–7 and 9–21 are rejected under 35 U.S.C. § 101 as being
directed to a judicial exception without significantly more.
Claims 1–3, 11–14, 17, and 18 are rejected under 35 U.S.C. § 102(b)
as being anticipated by Louch.
Claims 4 and 5 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Louch and Petchenkine.
Claims 6, 9, 10, 15, 16, 19, and 21 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Louch and Lowrey.
Claims 7 and 20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Louch and Sowa.

OPINION
Rejection under 35 U.S.C. § 101
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).
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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.”).
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
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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
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).
The PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Guidance”). 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 activity such as a fundamental economic
practice, or mental processes); and
(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)).
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:
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(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 Guidance.
Step One of the Alice Framework (2019 Guidance, Step 2A)
Under the first step of the Alice inquiry, the Examiner determined “the
claims are directed towards monitoring vehicle activity which is considered
to be an abstract idea inasmuch as operating a vehicle, passing information,
capturing information, storing information, detecting events (by comparing
the stored data with trigger elements), copying information, and
communicating the information to a remote site are activities that are
considered both methods of organizing activity and an idea of itself.” Final
Act. 3.
Other than arguing that devices such as “a remote computing device, a
vehicle data bus, a ring buffer, a fault detection mechanism, and a wireless
data link . . . are inherently not abstract” (Appeal Br. 15) (emphasis omitted),
Appellant does not dispute the Examiner’s characterization of the abstract
idea under Step 2A, i.e., why the above identified steps cannot be considered
methods of organizing activity, which fall under grouping (b) of the
Guidance, or a mental process under grouping (c). See Guidance, 84 Fed.
Reg. 52.
Notwithstanding the propriety of the Examiner’s determination as to
whether the claims are directed to the identified abstract idea, we agree with
Appellant that the Examiner has erred by failing to show adequately that the
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additional elements would not amount to significantly more than the abstract
idea.
Step Two of the Alice Framework (2019 Guidance, Step 2B)
A claim may recite additional elements that render the claim patent
eligible even though a judicial exception is recited in a separate claim
element.2 The Federal Circuit has held claims eligible at the second step of
the Alice framework (Step 2B) because the additional elements recited in the
claim provided “significantly more” than the recited judicial exception (e.g.,
because the additional elements were unconventional in combination).3
Therefore, if a claim has been determined to be directed to a judicial
exception under Revised Step 2A, we must evaluate the additional elements
individually and in combination under Step 2B to determine whether they
provide an inventive concept (i.e., whether the additional elements amount
to significantly more than the exception itself). The patent eligibility inquiry
may contain underlying issues of fact. Mortg. Grader, Inc. v. First Choice
Loan Servs. Inc., 811 F.3d 1314, 1325 (Fed. Cir. 2016). In particular, “[t]he
question of whether a claim element or combination of elements is well-
understood, routine and conventional to a skilled artisan in the relevant field
is a question of fact.” Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed.
Cir. 2018).
In the Step 2B analysis, an additional element (or combination of
elements) is not well-understood, routine or conventional unless the

2 See, e.g., Diehr, 450 U.S. at 187.
3 See, e.g., Amdocs Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1300, 1304
(Fed. Cir. 2016); BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility
LLC, 827 F.3d 1341, 1349–52 (Fed. Cir. 2016); DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1257–59 (Fed. Cir. 2014).

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examiner finds an evidentiary basis, and expressly supports a rejection in
writing with, one or more of the following:
1. A citation to an express statement in the specification or to a
statement made by an applicant during prosecution that
demonstrates the well-understood, routine, conventional nature
of the additional element(s). . . .
2. A citation to one or more of the court decisions discussed in
MPEP § 2106.05(d)(II) as noting the well-understood, routine,
conventional nature of the additional element(s).
3. A citation to a publication that demonstrates the well-
understood, routine, conventional nature of the additional
element(s). . . .
4. A statement that the examiner is taking official notice of the
well-understood, routine, conventional nature of the additional
element(s).
See Berkheimer Memo 3–4.4
Appellant contends the Examiner is incorrect in the assertion that the
“claims require no more than a generic computer to perform generic
computer functions that are well understood, routine and conventional
activities previously known to the industry.” Appeal Br. 14–15 (emphasis
omitted). According to Appellant, the claims actually recite, in the
apparatus claim, a remote computing device, a vehicle data bus, a ring
buffer, a fault detection mechanism, and a wireless data link. Id. at 15.
Based on this, the Appellant argues that because the Examiner only
addresses the “ring buffer,” the rejection is inconsistent with the Office’s
“Berkheimer Memo” guidance. Id. at 15–16.
We are persuaded by Appellant’s argument.

4 USPTO Commissioner for Patents Memorandum dated Apr. 19, 2018,
“Changes in Examination Procedure Pertaining to Subject Matter Eligibility,
Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.)”
(hereinafter “Berkheimer Memo”).
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The Examiner finds all claims are directed to “monitoring vehicle
activity.” Final Act. 3. Using claim 12 as an example, the additional
elements recited that are not part of the asserted abstract idea include at least
the following steps and components:
defining a ring buffer in a memory of an onboard vehicle
data collection device;
detecting when operational data passed through at least
one of the plurality of vehicle data inputs crosses a threshold;
asserting a fault code corresponding to a vehicle-based
device that generated at least some of the operational data and
corresponding to the threshold;
communicating, via a wireless data link, fault code data
associated with the asserted fault code to a remote computing
device; and
communicating, via the wireless data link, a
predetermined amount of operational data from the ring buffer to
the remote computing device.
The components not part of the alleged abstract idea thus include a “ring
buffer,” a “memory,” an “onboard vehicle data collection device,” a
“vehicle-based device that generated . . . data,” a “wireless data link,” and a
“remote computing device.”
In response to the Appellant’s argument, regarding Berkheimer, the
Examiner repeats that the “claims require no more than a generic computer
to perform generic computer functions that are well-understood, routine and
conventional activities previously known to the industry.” Answer 25. In
support of this, the Examiner asserts, without evidence, that the “vehicle
data bus [in claim 1] which is an element not only found in the applied art
but standard on cars mandated by the implementation of the OBDII sensor
something also shown in the applied art.” Id. The Examiner also asserts the
“ring buffer is a software or hardware memory construct also found in the
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applied art and known in various text books.” Id. In support of this
assertion, the Examiner cites, indirectly, to Malcolm G. Lane, “Data
Communications Software Design,” Boyd & Fraser Pub. Co., 1985, p. 246,
and Zdravko Karakehayov, et al., “Embedded Systems Design with 8051
Microcontrollers: Hardware and Software,” Marcel Dekker, Inc., 1999,
p. 186. Id.
At best, Lane discloses “it is possible to allow the receiver interrupt
handler do software buffering of characters from a line while the line has no
MLREAD pending. To implement this, a simple FIFO circular buffer or
ring bugger RING is set up.” Lane at 246. Karakehayov discloses a
“popular scheme is the ring or circular buffer. Figure 6.14 illustrates the
operation of an example ring buffer. In fact, it is a receive ring buffer which
we use in the following version of the terminal emulator program.”
Karakehayov at 186. Even if the two cited references provide evidence that
a ring buffer is a well-understood, routine, and conventional device, the
Examiner does not establish with evidence that it is well-understood,
routine, and conventional to employ a ring buffer “in a memory of an
onboard vehicle data collection device,” as claimed in claim 12. Further, the
Examiner asserts, again without supporting evidence, that the “wireless data
link is any type of wireless data link generic in nature.” Answer 26.
Moreover, the Examiner makes no attempt to establish, using
evidence, that the remaining additional elements of the claims, beyond the
scope of the alleged abstract idea, both alone and in the particular
combination claimed, are well-understood, routine, and conventional.
The Examiner’s findings on these issues, if addressed at all, are
conclusory and unsupported and, therefore, insufficient to show that the
purported facts are well-understood, routine, and conventional. See
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Berkheimer, 881 F.3d at 1369 (“Whether something is well-understood,
routine, and conventional to a skilled artisan at the time of the patent is a
factual determination.”). The two references, addressing but one claim
element, are insufficient to establish whether the recited “additional
element” components and steps are well-understood, routine, and
conventional in the computing arts. See id. (“Whether a particular
technology is well-understood, routine, and conventional goes beyond what
was simply known in the prior art. The mere fact that something is disclosed
in a piece of prior art, for example, does not mean it was well-understood,
routine, and conventional.”).
Because the Examiner has failed to meet the requirements under Step
2B of the Guidance, we do not sustain the rejection of claims 1–7 and 9–21
under 35 U.S.C. § 101 as being directed to a judicial exception without
significantly more.

Rejection of claims 1, 2, 12–14, 17, and 18 under 35 U.S.C. § 102(b)
Appellant argues claims 1, 12, and 17 together as a group, because
Appellant asserts that arguments made with respect to independent claim 1
can be applied to independent claims 12 and 17. Appeal Br. 39. Pursuant to
37 C.F.R. § 41.37, we select claim 12 as representative.
In particular, Appellant argues none of the three logging methods
disclosed in Louch teach “a ring buffer that stores a first amount of data
captured before the fault code was asserted and a second amount of data
captured after the fault code was asserted.” Appeal Br. 31–32; see also
Reply Br. 9–10.
We are not persuaded by Appellant’s argument that the “data logging”
function in Louch fails to disclose the claim language because “in Louch at
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[0049], Louch simply teaches producing a data log 232 of signal values
trending over time.” Appeal Br. 37. Louch explains that “it is advantageous
to the diagnosis and remediation of a vehicle problem to gather and record
data before, at the occurrence of and for some time after the occurrence of a
fault.” Louch ¶ 8. Louch details that “[d]ata logging is acquisition of signal
values from vehicle network messages as transmitted over the vehicle
networks 206 and 208, producing in a data log 232 containing a sequential
table of signal values.” Id. ¶ 49. The “data log 232 may be implemented as
a circular queue wherein if the allocated memory limit for the data log 232 is
reached the oldest values in the data log may be overwritten with newer
values as necessary to stay within the allocated memory.” Id. The data
logging function uses a circular queue, limited by its predetermined memory
limit, and because it records data continuously, it captures data before and
after faults. The data is transmitted over a wireless data link, as disclosed by
Louch:
[T]he diagnostic service device queries for, receives and gathers
vehicle sensor signal and vehicle management system diagnostic
data over the wireless network from the vehicle network
gateway. Gathered data may include any portion of available
real-time or dynamic vehicle signal data, such as sensor
measurements, as well as error codes and data from vehicle
network gateway generated logs such as trigger logs, strobe logs,
and data logs and real-time statistics.
Id. ¶ 56. Because Louch’s data logging meets the claim language, we do
not reach Appellant’s further arguments about trigger and strobe logging.
Therefore, we sustain the Examiner’s rejection of claims 1, 12, and 17
as anticipated by Louch. We also sustain the anticipation rejection of claims
2, 13, 14, and 18, which are not argued separately.

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Rejection of claim 3 under 35 U.S.C. § 102(b)
Dependent claim 3 recites “wherein the ring buffer is a first-in, first-
out [FIFO] buffer.” Appeal Br. 43 (Claims App.)
We not persuaded by Appellant’s argument that “there is no teaching
found in Louch where any buffer is configured as a FIFO buffer,” because
the Examiner construes “FIFO buffer incorrectly” to include “data that is
first in is the first to be removed or overwritten,” and “[d]ata comes in and is
over written [sic] as new data comes in.” Appeal Br. 39–40. Appellant
asserts, without citation to any evidence, that a “FIFO buffer, unless so
configured, will not automatically overwrite it[]s data. If a FIFO buffer is
full, the writing of new data will be suspended until the current data is
removed and a read index is advanced.” Id. at 39; see also Reply Br. 10–12.
The Specification does not define the term “first-in, first-out buffer,”
and we do not discern a description of the operation of a first-in, first-out
buffer that corresponds to Appellant’s assertion. However, the Specification
describes that “Buffer 108 can be implemented as a first in, first out buffer
that temporarily stores the operational data generated by the vehicle in
normal operation, which conventionally is generated and discarded rather
than being saved.” Spec. ¶ 58. This description is not inconsistent with the
Examiner’s interpretation, but it does not support Appellant’s proposed
construction.
In response, the Examiner cites to external sources to support the
construction as being the ordinary and customary meaning of a FIFO queue.
Answer 37. Appellant points to the source cited, and quoted in part by the
Examiner, which states, additionally:
A FIFO is useful for buffering a stream of data between a
sender and receiver which are not synchronised - i.e. not
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sending and receiving at exactly the same rate. Obviously if the
rates differ by too much in one direction for too long then the
FIFO will become either full (blocking the sender) or empty
(blocking the receiver). A Unix pipe is a common example of a
FIFO.
Reply Br. 11 (citing http://foldoc.org/fifo). This, according to Appellant,
means “if a FIFO buffer is full, no new data can be added.” Reply Br. 12.
The Examiner has the better position for the construction of this
disputed term. The portion of the definition Appellant relies on deals with
an overrun condition where data is coming in too fast to be send along. The
sending along of data, as in a Unix pipe, corresponds to being erased. As a
result, Appellant has not shown error in the Examiner’s reliance on Louch as
disclosing the claimed first-in, first-out buffer. Thus, we sustain the
anticipation rejection of claim 3.

Rejection of claim 11 under 35 U.S.C. § 102(b)
Dependent claim 11 recites, in part, “the remote computing device is
arranged to communicate a plurality of fault codes and at least one threshold
associated with each of the plurality of fault codes to the onboard vehicle
data collection device.” Appeal Br. 44 (Claims App.)
Appellant argues: “No teaching of the claimed communications from
the remote computer to the vehicle is found in Louch,” and that the claim
“recites more than simply communications ‘sent to and received from the
vehicle.’” Appeal Br. 40.
The Examiner finds the claim language is disclosed in paragraphs 42
and 46 of Louch. Final Act. 8, 40; see also Answer 38–39.
Louch discloses that on-vehicle code enables “bridging of vehicle
messages between the vehicle networks and external networks” in order to
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“monitor, send and receive network messages . . . The message database
contains . . . signal definition and signal range parameters for vehicle sensor
and control devices with are interfaced and in communication with the
vehicle networks.” Louch ¶ 46. The Examiner has demonstrated that,
because the vehicle can receive signal definition and range parameters from
external networks into the vehicle systems, Louch discloses communicating
“fault codes and at least one threshold associated with each of the plurality
of fault codes to the onboard vehicle data collection device,” as required by
claim 11. Therefore, we are not persuaded of error by the Examiner, and
sustain the rejection of claim 11 as anticipated by Louch.

Rejections under 35 U.S.C. § 103(a)
Appellant does not advance any arguments contesting any of the
rejections under 35 U.S.C. § 103, and instead asserts that the only grounds of
rejection to be reviewed on appeal are the rejections under 35 U.S.C. § 101
and 35 U.S.C. § 102(b). See Appeal Br. 10–11. Therefore, we sustain the
rejections of claims 4–7, 9, 10, 15, 16, and 19–21 under 35 U.S.C. § 103(a).
CONCLUSION
The Examiner’s rejection under 35 U.S.C. § 101 is REVERSED.
The Examiner’s rejection under 35 U.S.C. § 102(b) is AFFIRMED.
The Examiner’s rejections under 35 U.S.C. § 103(a) are AFFIRMED.

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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 9–21 101 Eligibility 1–7, 9–21
1–3, 11–14,
17, 18
102(b) Louch 1–3, 11–
14, 17, 18

4, 5 103(a) Louch, Petchenkine 4, 5
6, 9, 10, 15,
16, 19, 21
103(a) Louch, Lowrey 6, 9, 10,
15, 16, 19,
21

7, 20 103(a) Louch, Sowa 7, 20
Overall Outcome: 1–7, 9–21

TIME PERIOD FOR 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