Anand Dabak et al.

Patent Trials and Appeals Board

Aug 27, 2019

14051623 - (D) (P.T.A.B. Aug. 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.
14/051,623 10/11/2013 Anand Dabak TI-72924 9581
23494 7590 08/27/2019
TEXAS INSTRUMENTS INCORPORATED
P O BOX 655474, M/S 3999
DALLAS, TX 75265
EXAMINER
LAU, TUNG S
ART UNIT PAPER NUMBER
2863
NOTIFICATION DATE DELIVERY MODE
08/27/2019 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):
uspto@ti.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANAND DABAK and VENKATA RAMANAN
____________

Appeal 2018-005901
Application 14/051,623
Technology Center 2800
____________

Before BRADLEY R. GARRIS, LINDA M. GAUDETTE, and
MONTÉ T. SQUIRE, Administrative Patent Judges.

SQUIRE, Administrative Patent Judge.

DECISION ON APPEAL1

Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1 and 3–9. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 In this Decision, we refer to the Specification filed Oct. 11, 2013
(“Spec.”); Final Office Action dated Aug. 3, 2017 (“Final Act.”); Appeal
Brief filed Dec. 4, 2017 (“Br.”); and Examiner’s Answer dated Feb. 28,
2018 (“Ans.”). There is no Reply Brief.
2 Appellant is the Applicant, Texas Instruments Incorporated (Bib. Data
Sheet 1), which is also identified as the real party in interest (Br. 1).
Appeal 2018-005901
Application 14/051,623

2
CLAIMED SUBJECT MATTER
Appellant’s disclosure relates to band pass analog-to-digital sampling
of ultrasonic signals to determine fluid velocity. Spec. ¶ 2. In particular, the
claimed subject matter discloses a method of calculating a time difference to
determine fluid velocity based on measurement of two ultrasonic
propagation times. Spec. ¶ 7; Abstract.
Claim 1 is illustrative of the claimed subject matter on appeal and is
reproduced below from the Claims Appendix to the Appeal Brief:
1. A method of calculating a time difference comprising:
receiving a first ultrasonic signal transmitted at a first
frequency from a first transducer located in the pipe at a first
time;
receiving a second ultrasonic signal transmitted at the first
frequency from a second transducer located in the pipe at a
second time;
digitally sampling the first ultrasonic signal at a second
frequency to produce a first digitally sampled ultrasonic signal;
digitally sampling the second ultrasonic signal at the
second frequency to produce a second digitally sampled
ultrasonic signal;
interpolating the first digitally sampled signal to be
aligned in time with the second digitally sampled signal;
calculating the time difference in response to the first
and second digitally sampled ultrasonic signals.
Br. 14 (key disputed claim language italicized and bolded).
REJECTIONS ON APPEAL
The Examiner maintains (Ans. 2) the following rejections on appeal:
I. Claims 1 and 3–9 are rejected under 35 U.S.C. § 101 because
the claimed invention is directed to non-statutory subject matter
(“Rejection I”). Final Act. 3.
Appeal 2018-005901
Application 14/051,623

3
II. Claims 1, 3, 7, and 93 are rejected under AIA 35 U.S.C. § 103
as being unpatentable over Applicant’s Admitted Prior Art4 in view of
Rocha5 (“Rejection II”). Final Act. 9.
III. Claims 1 and 3–9 are rejected under AIA 35 U.S.C. § 103 as
being unpatentable over Krohne6 in view of Rocha (“Rejection III”). Final
Act. 11.
ANALYSIS
After review of the cited evidence in the appeal record and the
opposing positions of the Appellant and the Examiner, we determine that the
Appellant has not identified reversible error in the Examiner’s rejections.
Accordingly, we affirm each of the Examiner’s Rejections I, II, and III
(stated above) based on the fact-finding and reasoning set forth below, in the
Final Action, and in the Answer.

3 The Examiner’s statement of rejection based on the combination of AAPA
and Rocha (Rejection II, stated above) has been corrected to reflect that
claim 2 is cancelled. See Br. 14 (Claims Appendix) (omitting claim 2 from
the listing of claims on appeal); see also Index of Claims dated Aug. 30,
2017 (designating claim 2 as “Cancelled”).
4 Applicant’s Admitted Prior Art, Fig. 1, Spec. ¶¶ 4–6 (“AAPA”).
5 Rocha et al., Liquid Flow Sensor Based on PVDF in its Beta Phase, IEEE,
2752–2757 (2007) (“Rocha”).
6 KROHNE Messtechnik GmbH & Co. KG, Fundamentals of Ultrasonic-
Flow Measurement for Industrial Applications, pp. 1–31 (Apr. 2001)
(“Krohne”).
Appeal 2018-005901
Application 14/051,623

4
Rejection I. Claims 1 and 3–9 Patent-Ineligible under 35 U.S.C. § 101
A. Standard for Patent Ineligibility
Section 101 of the Patent Act provides “[w]hoever invents or
discovers any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof, may
obtain a patent therefor, subject to the conditions and requirements of this
title.” 35 U.S.C. § 101. The Supreme Court, however, 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. Pty.
Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (internal quotation marks
and citation omitted).
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 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, 130 S. Ct. 3218 (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, 130 S. Ct. 3218
(2010)); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95
(1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 67
Appeal 2018-005901
Application 14/051,623

5
(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).
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 (citation omitted). “A claim
that recites an abstract idea must include ‘additional features’ to ensure ‘that
Appeal 2018-005901
Application 14/051,623

6
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea].”’ Id. (quoting Mayo, 566 U.S. at 77).
The USPTO recently published revised guidance on the application of
§ 101. USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Under the Guidance, we 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)).7
See Guidance, 84 Fed. Reg. at 52, 55–56. 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 Guidance, 84 Fed. Reg. at 56.

7 All references to the MPEP are to Rev. 08.2017 (Jan. 2018).
Appeal 2018-005901
Application 14/051,623

7
B. Examiner’s Findings and Conclusion
Applying the Alice/Mayo two-step framework, the Examiner rejects
claims 1 and 3–9 under 35 U.S.C. § 101 as being directed to a judicial
exception. Final Act. 3–8. At the first step of the Alice/Mayo inquiry, the
Examiner determines that claim 1 is directed to the abstract idea and concept
of “calculating a time difference in signals” (Final Act. 5), i.e., a
“mathematical relationship/formula” (id. at 8). The Examiner finds that the
claim is directed to an abstract idea that is similar to the “mathematical
formula for computing ‘alarm limits’ in a catalytic conversion process . . .
[in] Parker v. Flook, 437 U.S. 584, 594–595.” Id. at 6.
At the second step of the Alice/Mayo inquiry, the Examiner
determines that claim 1, as a whole, does not amount to significantly more
than the abstract idea itself. Id. at 8. In particular, the Examiner finds that
the claim does not include “additional elements” sufficient to amount to
significantly more than the abstract idea itself because the claim:
simply append[s] well-understood, routine and
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial
exception, or/and add[s] insignificant extra[-]solution
activity to the judicial exception, e.g., mere data
gathering in conjunction with a law of nature or abstract
idea.
Id. at 3. The Examiner finds that the recited steps of “receiving,” “digitally
sampling,” “interpolating,” and “calculating” are “conventional for data
processing” and merely “extra-solution activity to provide data necessary for
[implementing] the abstract idea.” Id. at 4.
The Examiner further finds that
the claim does not effect an improvement to another
technology or technical field; the claim does not amount
Appeal 2018-005901
Application 14/051,623

8
to an improvement to the functioning of a computing
device itself; and the claim does not move beyond a
general link of the use of an abstract idea to a particular
technological environment.
Id. at 8. Thus, the Examiner concludes that “[w]hen considered separately
and in combination the additional elements do not add significantly more to
the abstract idea.” Id. at 4.
With respect to claims 3–9, the Examiner determines that each of
these claims is directed to an abstract idea similar to claim 1. Final Act. 3, 5,
9. Thus, for principally the same reasons discussed above for claim 1, the
Examiner concludes that claims 3–9, when analyzed as a whole, are
patent-ineligible under 35 U.S.C. § 101 because the additional elements they
recite, respectively, do not amount to significantly more than the abstract
idea itself. Ans. 6; Final Act. 9.
C. Appellant’s Contentions
Appellant argues that the Examiner’s § 101 rejection should be
reversed because the “rejection is not supported by a prima facie case.”
Br. 4. Appellant contends that the Examiner “failed to specifically identify
the additional elements in each claim, and failed to explain why they do not
amount to significantly more than the judicial exception.” Id. at 4.
At the first step of the Alice/Mayo analysis, in contrast to the
Examiner’s rejection, Appellant argues that the claims are not directed to
ineligible subject matter. Id. at 4–5. In particular, Appellant argues the
claims (1) are not directed to abstract ideas like those in the USPTO
guidance; (2) are not directed to merely “an idea of itself”; and (3) do not
recite a mental process that can be performed in a human mind, or by a
human using a pen and paper. Id. at 4–5. Rather, Appellant contends the
Appeal 2018-005901
Application 14/051,623

9
claims “recite performance by ultrasonic transmission by transducers” and
“their claimed solutions are necessarily rooted in electronic circuitry
technology to overcome a problem specifically arising in the realm of
electronic measurement.” Id. at 5. Appellant further contends the claims are
“an innovation in electronic circuitry technology and electronic measuring
processing, which in this case reflects an improvement in the measuring [of]
fluid flow.” Id. at 6.
Appellant also contends
the claimed systems and methods are directed to a
particular useful application of determining fluid flow,
with unconventional claimed solutions that are
necessarily and inextricably rooted in electronic
measurement technology . . . .
Br. 6.
At the second step of the Alice/Mayo analysis, Appellant argues that,
even if the claims “were deemed as being directed to an abstract idea, other
limitations in the claims show a patent-eligible application.” Id. at 5. In
particular, Appellant contends that the “receiving a first ultrasonic signal”
and “receiving a second ultrasonic signal” steps “add meaningful limitations
and therefore add significantly more than mere computer implementation.”
Id. at 6. Thus, Appellant maintains that “[t]aking all the additional claim
elements individually, and in combination, each claim as a whole amounts to
significantly more than an abstract idea.” Id. at 6.

Appeal 2018-005901
Application 14/051,623

10
D. Our Analysis
Appellant argues claims 1 and 3–9 as a group. Br. 4, 6 (“Claims 3–9
stand or fall with Claim 1.”). We select claim 1 as representative and claims
3–9 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
For the reasons stated below, and based on the findings and analysis
provided by the Examiner at pages 2–6 of the Answer and pages 3–8 of the
Final Office Action, we determine that claim 1 is directed to an abstract idea
and does not contain an inventive concept sufficient to transform the claimed
abstract idea into a patent-eligible application. We therefore sustain the
Examiner’s rejection under 35 U.S.C. § 101.
1. Guidance Step 1
Under Step l of the Guidance, we consider whether the claimed
subject matter falls within the four statutory categories set forth in § 101,
namely a “[p]rocess, machine, manufacture, or composition of matter.”
Guidance, 84 Fed. Reg. at 53–54; see 35 U.S.C. § 101. Claim 1 recites a
“method” and, thus, falls within the “process” category. Consequently, we
proceed to the next step of the analysis.
2. Guidance Step 2A Prong 1
Under Step 2A Prong l of the Guidance, we evaluate “whether the
claim recites a judicial exception, i.e., an abstract idea, a law of nature, or a
natural phenomenon.” Guidance, 84 Fed. Reg. at 54; see Alice, 573 U.S. at
216. Claim 1 recites a “method of calculating a time difference” that
includes (1) receiving a first ultrasonic signal; (2) receiving a second
ultrasonic signal; (3) digitally sampling the first ultrasonic signal; (4)
digitally sampling the second ultrasonic signal; (5) interpolating the first
digitally sampled signal to be aligned in time with the second digitally
Appeal 2018-005901
Application 14/051,623

11
sampled signal; and (6) calculating the time difference in response to the
first and second digitally sampled ultrasonic signals. See Br. 14 (Claims
Appendix).
Consistent with the Examiner’s analysis, we determine that claim 1
recites a judicial exception, i.e., an abstract idea, in the form of mathematical
concepts because the “interpolating” and “calculating” steps, for example,
involve the use of mathematical calculations, mathematical
equations/relationships, and/or performing mathematical operations on
collected data. In particular, the “interpolating” step involves interpolating
digital data using mathematical equations. See Spec. ¶ 34 (“The cosine
terms of equations [36] through [38], therefore, are interpolated to match the
timing of the sine terms in equations [39] and [ 42], respectively.), ¶ 37
(disclosing the “principle of Farrow cubic interpolation is given by equation
[44]” and “input terms are used to interpolate output terms Y(k) . . . of
equations [40] and [42], respectively”).
The “calculating” step, likewise, involves “calculating a time
difference” based on interpolated data using mathematical equations. See,
e.g., Spec. ¶ 7 (disclosing a “method of calculating a time difference”
whereby the “difference in travel time of the first and second ultrasonic
signals is calculated in response to the interpolated first sampled ultrasonic
signal and the sampled second ultrasonic signal”); see also id. at ¶¶ 21–37
(describing mathematical equations and calculations used to implement the
claimed method).
The mere fact, however, that claim 1 recites an abstract idea in the
form of mathematical concepts does not automatically render the claim
patent-ineligible. Diehr, 450 U.S. at 187 (“A claim drawn to subject matter
Appeal 2018-005901
Application 14/051,623

12
otherwise statutory does not become nonstatutory simply because it uses a
mathematical formula.”). Thus, we proceed to the Step 2A Prong 2 of the
Guidance.
3. Guidance Step 2A Prong 2
Under Step 2A Prong 2 of the Guidance, we must “(a) [i]dentify[]
whether there are any additional elements recited in the claim beyond the
judicial exception(s); and (b) evaluat[e] those additional elements
individually and in combination to determine whether they integrate the
exception into a practical application.” Guidance, 84 Fed. Reg. at 54–55.
Additional elements that merely add insignificant extra-solution activity to
an abstract idea fail to integrate the abstract idea into a patent-eligible
practical application. See id. at 55.
On the record before us, we determine that claim 1, as a whole, does
not integrate the judicial exception into a practical application. As recited in
the claim, in addition to the “interpolating” and “calculating” steps, the
method also includes the steps of “receiving” and “digitally sampling”
ultrasonic signals. These additional elements, however, do not integrate the
abstract idea claim 1 recites into a practical application.
Rather, consistent with the Examiner’s findings and analysis (Final
Act. 3–4; Ans. 2–4), we determine that claim 1’s “receiving” and “digitally
sampling” steps are merely data gathering steps necessary to conduct the
recited abstract idea, which constitute extra-solution activity insufficient to
confer patent-eligibility to the claim. Guidance, 84 Fed. Reg. at 55, 55 n.31;
MPEP § 2106.05(g). See also OIP Techs., Inc. v. Amazon.com, Inc., 788
Appeal 2018-005901
Application 14/051,623

13
F.3d 1359, 1363 (Fed. Cir. 2015) (holding that mere data gathering is
insufficient to confer patent eligibility).
Moreover, as the Examiner finds (Final Act. 6), we find claim 1 to be
similar to the claims held ineligible in Flook. The claims in Flook required
(1) collecting data (i.e., “[d]etermining the present value of [a] process
variable” such as temperature); (2) subjecting the data to a mathematical
operation to “[d]etermin[e] a new alarm base”; and (3) on the basis of the
result of that operation, making a determination. See 437 U.S. at 585, 597.
Here, like Flook, claim 1 similarly requires (1) collecting data (i.e., the
“receiving” and “digitally sampling” steps); (2) subjecting the data to
mathematical operations (i.e., the “interpolating” and “calculating” steps);
and (3) on the basis of the results of that operation, making a determination
(i.e., determining “a time difference in response to the first and second
digitally sampled ultrasonic signals”).
Appellant’s arguments do not reveal reversible error in the
Examiner’s analysis and findings in this regard. Appellant’s contentions that
“other limitations in the claims show a patent-eligible application” (Br. 5)
and the “receiving” steps of claim 1 “add meaningful limitations” (id. at 6)
are not persuasive because they are conclusory and Appellant does not
provide an adequate technical explanation to support them. In re
De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); see also In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997) (explaining that mere lawyer’s arguments
or conclusory statements, which are unsupported by concrete factual
evidence, are entitled to little probative value).
We find equally unpersuasive Appellant’s contentions that the claim
is “necessarily rooted in electronic circuitry technology” (Br. 5); “reflects an
Appeal 2018-005901
Application 14/051,623

14
improvement in . . . measuring fluid flow” (id. at 6); and is “necessarily and
inextricably rooted in electronic measurement technology” (id. at 6) because
they too are conclusory. De Blauwe, 736 F.2d at 705.
The fact that the claim includes additional elements that “generally
link the use of a judicial exception to a particular technological environment
or field of use,” i.e., electronic measurement technology using ultrasonic
signals,” without more is insufficient to integrate a judicial exception into a
practical application. Guidance, 84 Fed. Reg. at 55.
To the extent that Appellant is arguing that improvements lie in the
mathematical concepts themselves, e.g., “calculating a time difference,” the
Supreme Court has held that “the novelty of the mathematical algorithm is
not a determining factor at all.” See Flook, 437 U.S. at 591–92; see also id.
at 594–95 (“Respondent’s application simply provides a new and
presumably better method for calculating alarm limit values.”); cf. In re
Gitlin, No. 2018-1461 (Fed. Cir. June 13, 2019), slip op. at 5 (“But merely
calling for a mathematical concept to be performed more efficiently or with
a particular input does not amount to an application of the mathematical
concept that is patent-eligible.”).
Having determined that claim 1 recites a judicial exception but the
additional elements recited in the claim do not integrate the judicial
exception into a practical application, i.e., the claim is directed to an abstract
idea, we proceed to Step 2B of the Guidance.
4. Guidance Step 2B
Under Step 2B of the Guidance, we determine whether the claim
provides an “inventive concept,” i.e., whether the additional elements
beyond the judicial exception, individually and in combination, amount to
Appeal 2018-005901
Application 14/051,623

15
“significantly more” than the judicial exception itself. Guidance, 84 Fed.
Reg. at 56. According to the Guidance, “simply append[ing]
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality,” is indicative that an
inventive concept is absent. Id. at 56.
Consistent with the Examiner’s findings and analysis (Final Act. 3–4,
6, 8; Ans. 2–3), we determine that claim 1 is directed to an abstract idea,
e.g., “calculating a time difference,” and simply appends well-understood,
routine, conventional activities previously known to the industry, specified
at a high level of generality, and thus, fails to provide an inventive concept
sufficient to transform the abstract idea into patent-ineligible subject matter.
For example, regarding the “receiving” steps of the claim, the
Specification indicates that the use of ultrasound technology, including
transmitting ultrasonic signals using ultrasonic transducers placed within
pipes for calculating fluid velocity was well-understood, routine,
conventional and known in the art. See Spec. ¶ 3 (disclosing that
“[u]ltrasound technology has been developed for measuring fluid velocity in
a pipe” and “[u]ltrasound transducers may be place[d] within the pipes”), ¶ 4
(describing “an example of positioning ultrasonic transducers for fluid
velocity measurement” known in the prior art), Fig. 1 (“Prior Art”).
The prior art of record cited by the Examiner in this appeal also
indicates that the “receiving” steps of claim 1 were well-understood, routine,
and conventional activities previously known to the industry. See Rocha
2752 (describing methods for measuring fluid flow in pipes using first and
second “ultrasound sensors,” including receiving signals from the sensors
Appeal 2018-005901
Application 14/051,623

16
“in order to calculate the speed of the liquid or gas that passes through the
pipe”); Krohne 7–10 (Section 4), Fig. 5.
The Specification also indicates that the “digitally sampling” steps of
claim 1 were, likewise, well-understood, routine, and conventional activities
previously known in the industry. See, e.g., Spec. ¶ 3 (acknowledging prior
art methods only “[t]ypically” use analog processing); see also id. ¶ 24
(describing the use of a generic “[a]nalog to digital converter (ADC)” that
converts analog signals to digital signals and applies them to a signal
processing circuit).
We do not find Appellant’s argument persuasive of the Examiner’s
analysis and findings in this regard. Appellant’s assertion that the method is
“directed to a particular useful application of determining fluid flow . . . with
unconventional claimed solutions” (Br. 6) is not persuasive because it is
conclusory and Appellant does not identify any specific language in the
claim or disclosure in the Specification to support that assertion.
De Blauwe, 736 F.2d at 705.
Thus, we determine the additional elements recited in claim 1 beyond
the abstract idea, individually and in combination, do not amount to
“significantly more” than the abstract idea itself. Alice, 573 U.S. 217–218.
Accordingly, we affirm the Examiner’s rejection of claims 1 and 3–9
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter.
Rejection II. Claims 1, 3, 7, and 9 Obvious over AAPA and Rocha
Appellant argues claims 1, 3, 7, and 9 as a group. Br. 7, 12. We
select claim 1 as representative and the remaining claims subject to this
rejection stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
Appeal 2018-005901
Application 14/051,623

17
The Examiner determines that the combination of AAPA and Rocha
suggests a method satisfying all of the steps of claim 1 and, thus, concludes
the combination would have rendered claim 1 obvious. Final Act. 9–10
(citing AAPA, Spec. ¶¶ 4–6, Fig. 1; Rocha 2752, 2756).
Appellant argues that the Examiner’s rejection should be reversed
because
It appears that the Examiner’s proposed combination of
Admitted Prior Art and J.G. Rocha is based solely on
hindsight derived from Appellant's specification. The
Examiner has merely restated what the invention teaches:
interpolating the first digitally sampled signal to be
aligned in time with the second digitally sampled signal.
Therefore, the Examiner has not met the burden of
showing some reason for the combination other than the
hindsight gained from the invention itself.
Br. 11–12.
We do not find Appellant’s argument persuasive of reversible error in
the Examiner’s rejection because it is conclusory and mischaracterizes the
rejection. De Blauwe, 736 F.2d at 705; see also In re McLaughlin, 443 F.2d
1392, 1395 (CCPA 1971) (acknowledging that “[a]ny judgment on
obviousness is in a sense necessarily a reconstruction based upon hindsight
reasoning” but such reconstruction is proper “so long as it takes into account
only knowledge which was within the level of ordinary skill at the time the
claimed invention was made and does not include knowledge gleaned only
from applicant’s disclosure”).
Moreover, on the record before us, we find that a preponderance of
the evidence and sound technical reasoning support the Examiner’s analysis
and determination (Ans. 10–13; Final Act. 9–10) that the combination of
AAPA and Rocha suggests all of the steps of claim 1, and conclusion that
Appeal 2018-005901
Application 14/051,623

18
the combination would have rendered the claimed method obvious. AAPA,
Spec. ¶¶ 4–6, Fig. 1; Rocha 2752, 2756.
Contrary to what Appellant argues, we find the Examiner does
provide a reasoned basis, which is supported by a preponderance of the
evidence in the record, to evince why one of ordinary skill would combined
the teachings of the cited art to arrive at the claimed invention. See Final
Act. 10; Ans. 12–13. See also KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
420 (2007) (explaining that any need or problem known in the art can
provide a reason for combining the elements in the manner claimed).
Appellant fails to direct us to sufficient evidence or provide an
adequate technical explanation to establish why the Examiner’s articulated
reasoning for why one of ordinary skill would have arrived at the claimed
invention lacks a rational underpinning or is otherwise unreasonable.
Accordingly, we affirm the Examiner’s rejection of claims 1, 3, 7, and
9 under AIA 35 U.S.C. § 103 as obvious over the combination of AAPA and
Rocha.
Rejection III. Claims 1 and 3–9 Obvious over Krohne and Rocha
Appellant argues claims 1 and 3–9 as a group. Br. 12. We select
claim 1 as representative and the remaining claims subject to this rejection
stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner determines that the combination of Krohne and Rocha
suggests a method satisfying all of the steps of claim 1 and, thus, concludes
the combination would have rendered the claim obvious. Final Act. 11–13
(citing Krohne 7–10 (Section 4), Fig. 5; Rocha 2752, 2756).
In response to this rejection, Appellant repeats and relies on
principally the same argument previously made and discussed above in
Appeal 2018-005901
Application 14/051,623

19
response to the Examiner’s Rejection II. Compare Br. 11–12, with Br. 12.
Thus, we do not find Appellant’s argument persuasive of reversible error in
the Examiner’s Rejection III for reasons analogous to those previously
discussed above in affirming the Examiner’s Rejection II.
In particular, based on the fact-finding and for the reasoning provided
by the Examiner at pages 13–14 of the Answer and pages 11–13 of the Final
Office Action, we find the Examiner’s rejection is supported by a
preponderance of the evidence in this appeal record. See Krohne, pp. 7–10
(Section 4), Fig. 5; Rocha 2752, 2756.
Appellant’s contentions at page 12 of the Appeal Brief are conclusory
and, without more, insufficient to establish reversible error in the
Examiner’s findings and analysis in this regard. De Blauwe, 736 F.2d
at 705.
Accordingly, we affirm the Examiner’s rejection of claims 1 and 3–9
under AIA 35 U.S.C. § 103 as obvious over the combination of Krohne and
Rocha.
DECISION
The Examiner’s rejections of claims 1 and 3–9 are affirmed.
It is ordered that the Examiner’s decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED