Andre LeblancDownload PDFPatent Trials and Appeals BoardOct 24, 201913856923 - (D) (P.T.A.B. Oct. 24, 2019) Copy Citation 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. 13/856,923 04/04/2013 Andre LeBlanc 056452-0505888 4804 909 7590 10/24/2019 Pillsbury Winthrop Shaw Pittman, LLP PO Box 10500 McLean, VA 22102 EXAMINER LIANG, LEONARD S ART UNIT PAPER NUMBER 2862 NOTIFICATION DATE DELIVERY MODE 10/24/2019 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): docket_ip@pillsburylaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ANDRE LEBLANC ____________ Appeal 2019-001601 Application 13/856,923 Technology Center 2800 ____________ Before LINDA M. GAUDETTE, JEFFREY B. ROBERTSON, and JANE E. INGLESE Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1–17, 19, 20, and 22. (See Appeal Br. 7–19.) We have jurisdiction pursuant to 35 U.S.C. § 6(b). We AFFIRM. 1 This Decision includes citations to the following documents: Specification filed April 4, 2013 (“Spec.”); Final Office Action mailed December 1, 2017 (“Final Act.”); Appeal Brief filed July 2, 2018 (“Appeal Br.”); Examiner’s Answer mailed October 18, 2018 (“Ans.”); and Reply Brief filed December 18, 2018 (“Reply Br.”). 2 We use the word “Appellant” to refer to “Applicant” as defined in 37 C.F.R. § 1.42(a). Appellant, Sky Motion Research ULC, is also identified as the real party in interest. (Appeal Br. 3.) Appeal 2019-001601 Application 13/856,923 2 THE INVENTION Appellant states the invention relates to a system for determining weather forecasts. (Spec. ¶ 1.) Claim 1 is representative and reproduced below from the Claims Appendix to the Appeal Brief: 1. A computer implemented method for generating a weather forecast for a given time period and a given territory, the method comprising: receiving weather values for the given territory from one or more weather sources; using the weather values, generating a plurality of type probabilities, wherein each of the plurality of type probabilities indicates a likelihood that a corresponding precipitation type of a plurality of precipitation types will occur in the given territory during the given time period; using the weather values, generating a plurality of rate probabilities, wherein each of the plurality of rate probabilities indicates a likelihood that precipitation will occur at a corresponding precipitation rate of a plurality of precipitation rates in the given territory during the given time period; combining the plurality of type probabilities with the plurality of rate probabilities to produce a plurality of result probabilities, wherein the plurality of result probabilities indicates likelihoods that each of the plurality of precipitation types will occur at each of the plurality of precipitation rates in the given territory during the given time period; and outputting a forecast representing the plurality of result probabilities for display. (Appeal Br. (Claims Appendix) 21.) Claims 19, 20, and 22 are also independent and recite a device for generating a weather forecast, a computer implemented method for generating a weather forecast, and a non-transitory computer-readable Appeal 2019-001601 Application 13/856,923 3 medium comprising instructions that when executed by a processor, cause a computer to output a forecast representing a plurality of result probabilities for display, respectively. (Id. at 25–27.) REJECTIONS 1. The Examiner rejected claims 1–17, 19, 20, and 22 under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. (Final Act. 2–5.) 2. The Examiner rejected claims 1–17, 19, 20, and 22 under 35 U.S.C. § 103 as obvious over Myers et al. (US 7,321,827 B1, issued January 22, 2008, hereinafter “Myers”). (Final Act. 5–19.) Rejection under § 101 Appellant presents similar arguments with respect to the claims on appeal. (See Appeal Br. 14–19.) We therefore select claim 1 as representative, and decide the appeal as to this rejection of claims 1–17, 19, 20, and 22 based on claim 1 alone. 37 C.F.R. § 41.37(c)(1)(iv)(2016). PRINCIPLES OF LAW An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. 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. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). Appeal 2019-001601 Application 13/856,923 4 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, 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, 69 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diehr, 450 U.S. at 191); “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 (1854))); 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 Appeal 2019-001601 Application 13/856,923 5 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 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 recently published revised guidance on the application of § 101 with regard to the first step of the Alice/Mayo test (i.e., Step 2A of the USPTO’s Subject Matter Eligibility Guidance as incorporated into M.P.E.P. § 2106). USPTO’s January 7, 2019, 2019 Revised Patent Subject Matter Eligibility Guidance (“Revised Guidance”), 84 Fed. Reg. 50 (Jan. 7, 2019). Thus, under Step 1 of the Guidance, as revised, we determine whether the claimed subject matter falls within the four statutory categories: process, Appeal 2019-001601 Application 13/856,923 6 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 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)). See 84 Fed. Reg. at 54–55. 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: (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 84 Fed. Reg. at 56. DISCUSSION The Examiner’s Rejection The Examiner rejected representative claim 1 because the claim is directed to the abstract ideas of mental processes (collecting information, analyzing it, and displaying results of the collection and analysis) and mathematical concepts, without reciting additional elements that are Appeal 2019-001601 Application 13/856,923 7 sufficient to amount to significantly more than the judicial exception itself. (Final Act. 2–4.) Appellant’s Arguments Appellant argues the present claims generate a new type of data and a new technique for generating the new type of data, which do not wholly preempt a mathematical algorithm and result in an improvement to a computer’s functionality. (Appeal Br. 16–17.) Appellant argues the claims include significantly more than simple instructions to apply an abstract idea, but rather result in a new type of weather forecast. (Id. at 17–18.) Appellant argues the Examiner has not demonstrated that combining a plurality of type probabilities and rate probabilities to produce a plurality of result probabilities was well-understood, routine, and conventional to a skilled artisan at the time of the present invention. (Id. at 18.) For the reasons discussed below, we are not persuaded the Examiner erred in determining the claimed subject matter to be patent-ineligible as directed to a judicial exception without reciting significantly more. Initially, we find under Step 1 of the Guidance, that claim 1 is directed to a process (i.e., a method for generating a weather forecast for a given time period) including “generating a plurality of type probabilities,” “generating a plurality of rate probabilities,” “combining the plurality of type probabilities with the plurality of rate probabilities to produce a plurality of result probabilities,” and “outputting a forecast representing the plurality of result probabilities for display.” Accordingly, claim 1 falls within one of the four statutory categories of invention. Therefore, we turn next to Step 2A(1) of the Revised Guidance. Appeal 2019-001601 Application 13/856,923 8 The Judicial Exception Under Step 2A(1) we find that claim 1 recites a judicial exception in the form of mental steps and mathematical concepts. According to the Specification, the recited step in claim 1 of “generating a plurality of type probabilities” involves a “PType forecaster” that receives sets of weather values and “outputs for each set a probability distribution of a precipitation type (PType).” (Spec. ¶ 74.) Thus, generating a plurality of type probabilities involves mathematical concepts. Similarly, the recited step in claim 1 of “generating a plurality of rate probabilities” involves a “PRate forecaster” that receives sets of weather values as well as a time interval and “outputs for each set a probability distribution of a precipitation rate (PRate).” (Spec. ¶ 81.) Thus, generating a plurality of rate probabilities involves mathematical concepts. In addition, the step of “combining the plurality of type probabilities with the plurality of rate probabilities to produce a plurality of result probabilities” involves aggregating the plurality of PTypes into “a final PType distribution,” aggregating the plurality of PRates into a “final PRate distribution,” and combining them into a “PTypeRate distribution” by, for example, multiplying the probability of each type of precipitation by the probability of each rate of precipitation. (Spec. ¶¶ 17, 75, 82–86.) Here, the Specification describes also that in aggregating PType and PRate distributions, weighted aggregation may be employed, where a determination of the reliability of source is made, such that distributions associated with more reliable sources may be given more weight, whereas distributions associated with less reliable sources may be given less weight. (Spec. ¶¶ 75, 82.) Thus, “combining the plurality of type probabilities with Appeal 2019-001601 Application 13/856,923 9 the plurality of rate probabilities to produce a plurality of result probabilities” involves mathematical concepts and mental processes (evaluation and judgement). However, the mere fact that the claim recites mathematical concepts or mental processes does not automatically render the claim patent- ineligible. Diehr, 450 U.S. at 187 (“[A] claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula.”). As a result, we now turn to Step 2A(2) of the Revised Guidance to determine whether the claim integrates the judicial exception into a practical application. Integration into a Practical Application In Step 2A(2) of the Revised Guidance, we evaluate whether there are additional elements recited in the claim that integrate the mathematical concepts into a practical application. Claim 1 recites additionally “receiving weather values for the given territory from one or more weather sources” and “outputting a forecast representing the plurality of result probabilities for display.” Considering the claim as a whole, we determine that these limitations merely add generic computer activity to gather data and display results of the judicial exception, which amounts to no more than insignificant extra-solution activity, and are, therefore, insufficient to integrate the judicial exception into a practical application. In particular, the Specification describes a system that receives weather observations from different sources including point observations (feedback provided by users and automated stations), weather radars, satellites, numerical weather predictions, model outputs, and weather Appeal 2019-001601 Application 13/856,923 10 forecasts and advisories. (Spec. ¶ 59.) Thus, the step of “receiving weather values for a given territory form one or more weather sources” amounts to a mere data-gathering step. See Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016) (“merely selecting information, by content or source, for collection, analysis, and display does nothing significant to differentiate a process from ordinary mental processes . . . .”). As to the step of “outputting a forecast representing the plurality of result probabilities for display,” this step amounts to no more than outputting the result of the judicial exception recited in the claim. Therefore, we are not persuaded by Appellant’s argument that the claims generate a new type of data using a new technique (Appeal Br. 16), and agree with the Examiner, that such new data amounts to no more than the data output resulting from abstract mathematical concepts or mental processes. (See Ans. 9–10.) Appellant contends claim 1 is directed to an improvement in computer functionality citing McRO v. Bandai Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016). (Appeal Br. 17.) In particular, Appellant argues the Specification explains that existing forecasting systems do not generate a probability distribution indicating possible rates of precipitation for a particular type of precipitation. (Id.) However, we agree with the Examiner that rather than an improvement to computer functionality itself, claim 1 alters the weather data using computers as a tool in order to generate the plurality of type probabilities, rate probabilities, and produce a plurality of result probabilities, and as such, claim 1 is not similar to the technological improvement of manual 3-D animation techniques at issue in McRo. (Ans. 9; McRO, 837 F.3d at 1316 (“When looked at as a whole, claim 1 is directed to a patentable technological improvement over the existing, manual 3-D Appeal 2019-001601 Application 13/856,923 11 animation techniques”).) See Alice, 573 U.S. at 225, cited in MPEP § 2106.05(a). For all these reasons, claim 1 does not integrate the judicial exception into a practical application. Thus, claim 1 is directed to the abstract idea in the form of mental steps and mathematical concepts. The Inventive Concept Appellant contends claim 1 results in a new type of weather forecast and thus recites a technology-based solution of how to generate a new type of weather forecast. (Appeal Br. 18.) To determine whether claim 1 provides an inventive concept, we consider whether claim 1 adds a specific limitation beyond the mathematical concepts that is not well-understood, routine, or conventional in the field, or simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the mathematical concepts. 84 Fed. Reg. at 56. In this regard, the Specification provides a discussion of the hardware and operating environment, describing the use of “a conventional computer” including “several types of bus structures,” “any type of computer-readable medias which can store data that is accessible by a computer,” as well as other conventional display devices and networked environments. (Spec. ¶¶ 93–103.) In addition, as discussed above, the limitations of “receiving weather values for the given territory from one or more weather sources” and “outputting a forecast representing the plurality of result probabilities for display” merely appends generic computer activity to gather data and display results of the judicial exception. (See Final Act. 2.) As a whole, Appeal 2019-001601 Application 13/856,923 12 claim 1 is directed to an abstract idea, which relies on a computer used in its ordinary capacity performing well-understood, routine, and conventional activities. To summarize, because claim 1 recites subject matter judicially excepted from patent eligibility, does not integrate the judicially excepted subject matter into a practical application, and simply appends well- understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicially excepted subject matter, we sustain the Examiner’s rejection of claims 1–17, 19, 20, and 22 under 35 U.S.C. § 101. Rejection 2 Although Appellant presents separate arguments with respect to independent claim 20, Appellant’s arguments in this regard are similar to the arguments set forth with respect to independent claim 1. (See Appeal Br. 9– 14.) We therefore select claim 1 as representative, and decide the appeal as to this rejection of claims 1–17, 19, 20, and 22 based on claim 1 alone. 37 C.F.R. § 41.37(c)(1)(iv)(2016). ISSUE The Examiner found Myers discloses a computer implemented method for generating a weather forecast for a given time period and a given territory including receiving weather values from a given territory from one or more weather sources, and generating a plurality of type probabilities. (Final Act. 5–6.) The Examiner found Myers does not disclose explicitly using weather values to generate a plurality of rate probabilities, combining the plurality of type probabilities with the plurality of rate probabilities to Appeal 2019-001601 Application 13/856,923 13 produce a plurality of result probabilities indicating the likelihood that each of the plurality of precipitation types will occur at each of the plurality of precipitation rates in the given territory during the given time period, and outputting a forecast. (Id. at 6.) However, the Examiner determined it would have been obvious to have generated a plurality of rate probabilities using weather values, because Myers discloses a probability of precipitation (POP) value within a given time period, and because amount and rate are directly linked, determining rate probabilities would have been obvious in view of determining the most probable amount of precipitation. (Id. at 6–7.) The Examiner determined combining the plurality of type probabilities with the plurality of rate probabilities to produce a plurality of result probabilities would have been obvious because Myers implicitly teaches generating a plurality of rate probabilities by disclosing probable amounts of precipitation, and that it would have been within the skill, knowledge, and ability of the ordinarily skilled artisan to combine the plurality of type probabilities with the plurality of rate probabilities to produce result probabilities, including outputting a forecast. (Id. at 7–8.) The Examiner determined one of ordinary skill in the art would have been motivated to do so in order to “gain the benefit of forecasting probability of precipitation values and most probable precipitation amount values.” (Id. at 8.) Appellant argues the Examiner has not shown one of ordinary skill in the art would have modified Myers to combine a plurality of type probabilities with a plurality of rate probabilities because: (a) Myers does not disclose a plurality of rate probabilities, where each of the rate probabilities indicates a likelihood precipitation will occur at each of a Appeal 2019-001601 Application 13/856,923 14 plurality of precipitation rates; (b) combining a plurality of type probabilities with a plurality of rate probabilities; or (c) a plurality of result probabilities, which indicates likelihoods that each of a plurality of precipitation types will occur at each a plurality of precipitation rates. (Appeal Br. 8.) Accordingly, the dispositive issue with respect to this rejection is: Has Appellant identified a reversible error in the Examiner’s position that it would have been obvious to have generated a plurality of rate probabilities and combined the rate probabilities with a plurality of type probabilities to generate a plurality of result probabilities indicating the likelihood that each of a plurality of precipitation types will occur at each of a plurality of precipitation rates in view of Myers? DISCUSSION Initially, we interpret the recitation in claim 1 of “generating a plurality of type probabilities, wherein each of the plurality of type probabilities indicates a likelihood that a corresponding precipitation type of a plurality of precipitation types will occur in the given territory during the given time period.” In particular, we interpret the phrase “each of the plurality of type probabilities” to include one precipitation type, such as snow, as well as precipitation type distributions, including multiple precipitation types, such as snow, freezing rain, and rain. This interpretation is consistent with the plain language of the claim, which recites “each of the plurality of type probabilities indicates a likelihood that a corresponding precipitation type of a plurality of precipitation types will occur.” In other words, the claim language allows for the presence of one precipitation type from the received weather value. Appeal 2019-001601 Application 13/856,923 15 Turning to Appellant’s arguments, we are not persuaded by Appellant’s contention that because precipitation rate may be calculated based on radar reflectivity data rather than determining a plurality of rate probabilities, it would not have been obvious to have generated a plurality of rate probabilities in view of the disclosure in Myers. (Appeal Br. 9–10.) As pointed out by the Examiner, Myers discloses the most probable amount of precipitation is not a single value, but is the output calculated and determined based on the relationship between many data values and a plurality of most probable precipitation amounts and various rate probabilities. (Ans. 4–5; citing Myers, col. 4, ll. 50–67.) In particular, Myers discloses the POP for a particular time period may be calculated utilizing the output from computerized numerical forecast models and “may be modified based upon current data from manual or sensor observations of current conditions, as well as data from radar and satellite systems. The values may also be calculated and modified manually.” (Myers, col. 4, ll. 62–67.) Indeed, Myers discloses data from multiple data sources, including, observational data sources, operational meteorologist, numerical models, and historical climatological database, is used as input to a forecast model that executes algorithms to output probability forecast information. (Myers, Fig. 1; col. 6, ll. 27–50, col. 5, ll. 31–43.) Thus, Appellant’s argument that Myers would not render determining a plurality of rate probabilities obvious because probability rates may be determined based on radar reflectivity data does not take into account the full disclosure of Myers, which discloses other data sources for determining probability forecast information. Appellant’s arguments that Myers “does not indicate that the most probable amount includes a likelihood of the most probable amount” and Appeal 2019-001601 Application 13/856,923 16 Myers “describes that most probable amount is a numerical value — not a range” (Reply Br. 2), are not persuasive. As the Examiner points out in the Answer (Ans. 4–5), the single most probable precipitation amount is an output, which as discussed above, is generated based on data from various sources. We are not persuaded also by Appellant’s argument that Myers does not render obvious combining a plurality of probabilities with a plurality of precipitation types as this limitation has been interpreted above. In this regard, Appellant contends Myers discloses a most probable amount of rain, melted snow, and ice combined to obtain an amount of total precipitation. (Appeal Br. 10, citing Myers, col. 4, ll. 24–28.) However, Myers expressly discloses “[i]nformation for the specific types of precipitation is also calculated and may be communicated in the same manner.” (Myers, col. 4, ll. 28–30, see also col. 5, ll. 25–27, col. 7, ll. 36–38, claim 11.) Appellant does not address this disclosure in Myers, which provides sufficient support for the Examiner’s position that it would have been obvious to have combined a plurality of precipitation types with a plurality of precipitation rates in order to obtain the result probabilities recited in claim 1. Accordingly, we are not persuaded also by Appellant’s argument that Myers does not disclose providing most probable precipitation amounts for each different type of precipitation. (Appeal Br. 11.) As discussed above, Myers discloses the probabilities of each type of precipitation from a given time period may be calculated and communicated. Thus, Appellant has not considered the disclosure of Myers as a whole and what it would convey to one of ordinary skill in the art. Appeal 2019-001601 Application 13/856,923 17 As a result of the above discussion, we are not persuaded by Appellant’s arguments that Examiner has not provided sufficient rationale for the combination of a type probabilities and rate probabilities. (Appeal Br. 11–12.) We sustain the Examiner’s rejection of claims 1–17, 19, 20, and 22 as obvious over Myers. CONCLUSION Claims Rejected 35 U.S.C. § Reference/Basis Affirmed Reversed 1–17, 19, 20, 22 101 Eligibility 1–17, 19, 20, 22 1–17, 19, 20, 22 103 Myers 1–17, 19, 20, 22 Overall Outcome 1–17, 19, 20, 22 AFFIRMED Copy with citationCopy as parenthetical citation