Austerlitz, Howard P. et al.Download PDFPatent Trials and Appeals BoardMay 18, 202014510288 - (D) (P.T.A.B. May. 18, 2020) 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. 14/510,288 10/09/2014 Howard P. Austerlitz PA66IP0061USB 1093 49458 7590 05/18/2020 DON W. BULSON (PARK) RENNER, OTTO, BOISSELLE & SKLAR, LLP 1621 EUCLID AVENUE / 19TH FLOOR CLEVELAND, OH 44115 EXAMINER LE, TOAN M ART UNIT PAPER NUMBER 2864 NOTIFICATION DATE DELIVERY MODE 05/18/2020 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): ipdocket@rennerotto.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte HOWARD P. AUSTERLITZ, RONALD W. BUETER, STANLEY WOOD, and LEWIS J. BOYD ____________________ Appeal 2019-000693 Application 14/510,288 Technology Center 2800 ____________________ Before CATHERINE Q. TIMM, N. WHITNEY N. WILSON, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s December 4, 2017 decision finally rejecting claims 1, 3–17, and 19–21 (“Final Act.”). The rejections set forth in the Final Action (one each under 35 U.S.C. § 101 and 35 U.S.C. § 112) were withdrawn by the Examiner (Ans. 2), and a new ground of rejection under § 101 of claims 1, 3–5, 8–11, 16, 17, 19, and 20 was presented in the Answer (id.). Therefore, the rejection of claims 1, 3–5, 8–11, 16, 17, 19, and 20 is on appeal. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Parker-Hannifin Corporation as the real party in interest (Appeal Br. 2). Appeal 2019-000693 Application 14/510,288 2 We reverse. CLAIMED SUBJECT MATTER Appellant’s disclosure relates to a fluid level measurement system that includes a first pressure sensor disposed inside a fluid tank at a first elevation relative to a height axis of the fluid tank, and a second pressure sensor disposed inside the fluid tank at a second elevation relative to the height axis of the fluid tank (Abstract). The first pressure sensor and the second pressure sensor are configured to provide a signal indicative of a sensed pressure, and fluid height is calculated from the difference in sensed pressure between the first and second pressure sensors relative to the sensed pressure of either the first or the second pressure sensor (id.). The system is said to be useful for measuring fuel levels in the fuel tank of an aircraft (Spec. 1–2). Details of the claimed system are set forth in independent claims 1, 17, and 19, which are reproduced below from the Claims Appendix to the Appeal Brief: 1. A fluid level measurement system, comprising: a first pressure sensor disposed inside a fluid tank at a first elevation relative to a fixed tank vertical axis; a second pressure sensor disposed inside the fluid tank at a second elevation relative to the fixed tank vertical axis, the second elevation different from the first elevation, wherein the first pressure sensor and the second pressure sensor are configured to provide a signal indicative of a sensed pressure, and fluid height in the fixed tank vertical axis is calculated from i). a scale factor obtained by dividing a known vertical spacing between the first and second pressure sensors in the fixed tank vertical axis by a difference in the pressure Appeal 2019-000693 Application 14/510,288 3 sensed between the second pressure sensor and the first pressure sensor, wherein the pressure sensed by the first and second pressure sensors is obtained while both the first and the second pressure sensors are immersed in the fluid, and ii). a sensed pressure from one of the first or second pressure sensors. 17. A method of measuring a fluid level in a fluid tank, the fluid tank including a first pressure sensor disposed inside the fluid tank at a first elevation relative to a fixed tank vertical axis of the fluid tank and a second pressure sensor disposed inside the fluid tank at a second elevation relative to the fixed tank vertical axis of the fluid tank, the second elevation different from the first elevation, the method comprising: using the first pressure sensor to measure a first pressure value; using the second pressure sensor to measure a second pressure value; and calculating the fluid level of the fluid in the tank based on i) a scale factor obtained by dividing a known vertical spacing between the first and second pressure sensors in the fixed tank vertical axis by a difference in the pressure sensed between the second pressure sensor and the first pressure sensor while both the first and the second pressure sensors are immersed in the fluid, and ii) a sensed pressure from one of the first or second pressure sensors. 19. A method of measuring a fluid level in a fluid tank, the fluid tank including a first pressure sensor disposed inside the fluid tank at a first elevation relative to a height axis of the fluid tank and a second pressure sensor disposed inside the fluid tank at a second elevation relative to the height axis of the fluid tank, the second elevation different from the first elevation, the method comprising: Appeal 2019-000693 Application 14/510,288 4 using the first pressure sensor to measure a first pressure value; using the second pressure sensor to measure a second pressure value; and calculating the fluid level of the fluid in the tank based on a difference in pressure between the first measured pressure value and the second measured pressure value, wherein calculating the fluid level includes using the equation Zn = ((ΔZ/(P2-P1)) x Pn, where Zn is the fluid level, P2 is the second measured pressure value, P1 is the first measured pressure value, ΔZ is the difference between second elevation and the first elevation, and Pn is the pressure reading of an nth pressure sensor. REJECTION Claims 1, 3–5, 8–11, 16, 17, 19, and 20 are rejected under 35 U.S.C. § 101 on the grounds that the claimed invention is directed to a judicial exception, without significantly more. DISCUSSION Rejection 1 – 35 U.S.C. § 101 Legal background. 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 interpreted § 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, the Supreme Court’s two-step framework, described in Mayo and Alice guides our analysis. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Appeal 2019-000693 Application 14/510,288 5 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. 593, 611 (2010)); 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” (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 (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 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 Appeal 2019-000693 Application 14/510,288 6 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, the analysis moves 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 the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. (alterations in original) (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 has 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 MPEP 2 §§ 2106.05(a)–(c), (e)–(h)). 2 Manual of Patent Examining Procedure. Appeal 2019-000693 Application 14/510,288 7 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 54–56. Appellant addresses each of independent claims 1, 17, and 19 separately (see Appeal Br. 6, 16). Accordingly, we will focus our analysis on each of the independent claims on appeal. Claim 1 Guidance Step 1 There is no dispute that claim 1 falls within a statutory category, as it recites a system, which we interpret as a machine or manufacture. Guidance Step 2A, Prong 1 Under Step 2A of the Guidance, we first consider whether the claims recite a judicial exception. Claim 1 recites a number of limitations which involve mathematical calculations, in particular: (1) calculating the fluid height in the fixed tank, and (2) obtaining a scale factor by dividing a known vertical spacing between the first and second pressure sensors by a difference in the pressure sensed between the first and second pressure sensors. Each of these limitations can be thought of as mathematical manipulation of data (i.e., mathematical concepts), which fall within the class of abstract ideas. Thus, we determine that claim 1 recites a judicial Appeal 2019-000693 Application 14/510,288 8 exception because mathematical concepts are identified in the Guidance as an abstract idea, which is a judicial exception. 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). “A claim is not ‘directed to’ a judicial exception, and thus is patent eligible, if the claim as a whole integrates the recited judicial exception into a practical application.” Guidance at 53. A claim integrates the judicial exception into a practical application when it applies, relies on, or uses the judicial exception “in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” Id. The additional elements in claim 1 include (1) a first pressure sensor disposed inside a fluid tank at a first elevation relative to a fixed tank vertical axis; (2) a second pressure sensor disposed inside the fluid tank at a second elevation relative to the fixed tank vertical axis, and (3) the first and second pressure sensors being configured to provide a signal indicative of a sensed pressure. Thus, claim 1 recites a system for measuring a fluid level in a tank which includes two pressure sensors, and a fluid tank having a tank vertical axis. The two pressure sensors are located at different, but known, elevations relative to the tank vertical axis. Claim 1 provides a specific improvement in a practical application, namely a system for measuring fuel levels which limits the presence of electrical wires in the field tank and lowers the overall weight of components needed to measure fuel levels (Spec. 1–2). Appeal 2019-000693 Application 14/510,288 9 The non-abstract portions of the claim specify particular components and require that their relative positions be known. In this sense, the claim is analogous to the claims in Thales Visionix Inc. v. United States, 850 F.3d 1343, 1345 (Fed. Cir. 2017). In that case, the court held that the claimed invention, which used conventional sensors and mathematical equations, was patent eligible because the claims set forth a particular non-conventional configuration of the sensors and use of the data to achieve a useful, practical result. Id., at 1348–49 (determining the claims were “directed to systems and methods that use inertial sensors in a non-conventional manner to reduce errors in measuring the relative position and orientation of a moving object on a moving reference frame.”). Similarly, in this case, the use of the pressure sensors in the claimed configuration (at different but known relative elevations) permits a fuel gage which is said to be accurate, as well as safer and lighter than previously known systems. Thus, the claim integrates the judicial exception into a practical application because it “imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” Guidance at 53. In this case, the abstract ideas are used as part of a system to generate a practical object, which can be used in real world applications. Thus, the claim includes additional elements that integrate the abstract limitations into a practical application. Accordingly, we conclude that claim 1, and the claims which depend from it, describe patent eligible subject matter. Appeal 2019-000693 Application 14/510,288 10 Claims 17 and 19 Guidance Step 1 There is no dispute that claims 17 and 19 fall within a statutory category, as they recite a method of measuring a fluid level in a fluid tank. Guidance Step 2A, Prong 1 Under Step 2A of the Guidance, we first consider whether the claims recite a judicial exception. Claims 17 and 19 recite a number of limitations which involve mathematical calculations, in particular, (1) calculating the fluid height in the fixed tank; (2) obtaining a scale factor by dividing a known vertical spacing between the first and second pressure sensors by a difference in the pressure sensed between the first and second pressure sensors. Each of these limitations can be thought of as mathematical manipulation of data (i.e., mathematical concepts), which fall within the class of abstract ideas. Thus, we determine that claims 17 and 19 recite judicial exceptions because mathematical concepts are identified in the Guidance as an abstract idea, which is a judicial exception. 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). “A claim is not ‘directed to’ a judicial exception, and thus is patent eligible, if the claim as a whole integrates the recited judicial exception into a practical application.” Guidance at 53. A claim integrates the judicial exception into a practical application when it “imposes a meaningful limit on the judicial exception, such that the claim is Appeal 2019-000693 Application 14/510,288 11 more than a drafting effort designed to monopolize the judicial exception.” Id. The additional elements in claims 17 and 19 include: (1) a first pressure sensor disposed inside a fluid tank at a first elevation relative to a fixed tank vertical axis; and (2) a second pressure sensor disposed inside the fluid tank at a second elevation relative to the fixed tank vertical axis. Thus, claims 17 and 19 claim methods for measuring a fluid level in a tank which includes the use of two pressure sensors, and a fluid tank having a tank vertical axis. The two pressure sensors are located at different, but known, elevations relative to the tank vertical axis. According to the Specification, claims 17 and 19 recite specific improvements in a practical application, namely a method for measuring fuel levels which limits the presence of electrical wires in the field tank and lowers the overall weight of components needed to measure fuel levels (Spec. 1–2). The non-abstract portions of the claim specify particular components and require that their relative positions be known. As was the case with claim 1, claims 17 and 19 are analogous to a claim in Thales, where the court held that the claimed invention, which described a method comprising determining an orientation of an object relative to a moving reference frame based on signals from two conventional inertial sensors mounted respectively on the object and on the moving reference frame was patent eligible because the claims set forth a particular non-conventional configuration of the sensors and use of the data to achieve a useful, practical result. Thales, 850 F. 3d at 1345–46, 1349. In this instance, the claimed methods use sensors in the claimed configuration (at different but known relative elevations) in a method to Appeal 2019-000693 Application 14/510,288 12 measure a fluid level in a fluid tank which is said to be accurate, as well as safer and lighter than previously known systems. Thus, the claims integrate the judicial exception into practical applications because they impose “a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” Guidance at 53. In this case, the abstract ideas are used as part of methods which can be used in real world applications. Thus, the claims includes additional elements that integrate the abstract limitations into practical applications. Accordingly, we conclude that claims 17 and 19, and the claims which depend from them, describe patent eligible subject matter. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–5, 8– 11, 16, 17, 19, 20 101 Eligibility 1, 3–5, 8– 11, 16, 17, 19, 20 REVERSED Copy with citationCopy as parenthetical citation