Austerlitz, Howard P. et al.

Patent Trials and Appeals Board

May 18, 2020

2019000693 (P.T.A.B. May. 18, 2020)

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35 U.S.C. § 101 and 35 U.S.C. § 112) were withdrawn by the Examiner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).
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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
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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:
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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
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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
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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.
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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
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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).
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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.

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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
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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
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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