AVEVA Software, LLCDownload PDFPatent Trials and Appeals BoardMay 22, 202014231274 - (D) (P.T.A.B. May. 22, 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. 14/231,274 03/31/2014 Ian H. Boys 160095-024000 1361 71373 7590 05/22/2020 GREENBERG TRAURIG (PHX) c/o: Greenberg Traurig LLP - Chicago Office 77 West Wacker Drive, Suite 3100 Intellectual Property Department Chicago, IL 60601 EXAMINER COOK, BRIAN S ART UNIT PAPER NUMBER 2127 NOTIFICATION DATE DELIVERY MODE 05/22/2020 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): cadanoc@gtlaw.com clairt@gtlaw.com gtipmail@gtlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte IAN H. BOYS, DOUGLAS PAUL KANE, DAVID H. JEROME, and CAL DEPEW Appeal 2019-001261 Application 14/231,274 Technology Center 2100 BEFORE JEREMY J. CURCURI, JOHN F. HORVATH, ADAM J. PYONIN, Administrative Patent Judges. HORVATH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 seeks review of the Examiner’s decision to reject claims 1–18. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as AVEVA Group plc. Appeal Br. 1. Appeal 2019-001261 Application 14/231,274 2 CLAIMED SUBJECT MATTER The claimed invention is directed to “a system that models [a] process for the purpose of simulating it accurately.” Spec. ¶ 6. The model can be “configure[d] . . . to function in a plurality of modes” including “a process mode, a fluid flow mode, and a dynamic mode.” Id. ¶ 7. “Process Mode performs steady state simulations to create and improve process design, Fluid Flow Mode is a steady state simulator that models piping networks and Dynamics Mode simulates system transients over time.” Id. ¶ 108. These three modes “primarily affect the basic specification of the simulation,” that is, “which variables are fixed or freed and which parameters, variables, and equations are active or inactive.” Id. ¶ 111. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A system configured to simulate an industrial process, comprising: a processor; a memory device coupled to the processor; software instructions comprising an application stored on the memory device and executable by the processor, said application comprising: instructions, when executed by the processor, representing a process entity with a model, wherein the process entity comprises the industrial process, and wherein the model includes a set of one or more equations each comprised of one or more simulation variables; instructions, when executed by the processor, configuring the model to function in a plurality of simulation modes, said simulation modes comprising a process simulation mode, a fluid flow simulation mode, and a dynamics simulation mode, Appeal 2019-001261 Application 14/231,274 3 said simulation modes each associated with a variable specification defining which of the one or more simulation variables are fixed and which of the one or more simulation variables are freed during simulation of the model in said mode; instructions, when executed by the processor, simulating the function of the process entity with the model in a first simulation mode from the plurality of simulation modes by solving the set of equations of the model for the freed simulation variables defined by the variable specification of the first simulation mode; and instructions, when executed by the processor, switching the model from the first simulation mode to a second simulation mode from the plurality of simulation modes by solving the set of equations of the model for the freed simulation variables defined by the variable specification of the second simulation mode, without changing the set of equations in the model. Appeal Br. 22 (Claims Appendix). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Varma US 6,442,515 B1 Aug. 27, 2002 Jana Amiya K. Jana, Chemical Process Modelling and Computer Simulation, 2nd ed. (2011) 2011 REJECTIONS Claims 1–18 stand rejected under 35 U.S.C. § 101 as directed to unpatentable subject matter. Final Act. 16–24. Claims 1–18 stand rejected under 35 U.S.C. § 103 as obvious over Jana and Varma. Final Act. 24–47. Appeal 2019-001261 Application 14/231,274 4 OPINION We review the appealed rejections for error based upon the issues identified by Appellant, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). Any arguments not raised by Appellant are waived. 37 C.F.R. § 41.37(c)(iv). We have reviewed the Examiner’s rejection in light of Appellant’s arguments that the Examiner has erred. We disagree with Appellant’s contentions, and adopt as our own the findings and reasons set forth by the Examiner in the Final Action and Answer. We highlight the following for emphasis. Rejection under 35 U.S.C. §101 The Examiner finds claims 1–18 are patent ineligible because they are “directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.” Final Act. 16. Specifically, the Examiner finds the claims are directed to solving a set of mathematical equations (a model) based on the data input into the equations (a variable specification). Id. at 17–18 (finding the claimed method simulates a process by solving a set of equations (a model) based on the data input into the model (a variable specification), and how that data is organized). Appellant argues the Examiner erred for several reasons. First, Appellant argues, claims 1–18 provide “a technical improvement over the prior art,” namely, “one application that can use one simulation model in all interested [simulation] modes.” Appeal Br. 8–9. Appellant argues the claims reflect this improvement by reciting “using a variable specification for each of several simulation modes that defines which simulation variables are fixed and which simulation variables are freed during each simulation mode. This enables solving a set of equations of a model by changing the Appeal 2019-001261 Application 14/231,274 5 variables for which the equations are solved and without changing the equations.” Id. at 10. Second, Appellant argues claims 1–18 are patentable because the Examiner failed to cite “to a court that has previously identified this concept, or anything similar, as being an abstract idea.” Id. at 12. Third, Appellant argues that claims 1–18 are patentable because they improve computer functionality. Id. at 14. Specifically, Appellant argues, the claims reduce the amount of computer storage and processing resources that are required to perform a plurality of different simulation programs and models known in the prior art by incorporating different simulation modes into the same simulation model. Id. Fourth, Appellant argues, even if the claims are directed to an abstract idea the combination of recited elements amounts to significantly more than that abstract idea because associating “simulation modes with a variable specification defining which variables are fixed and freed” and “solving the set of equations of the model for the freed simulation variables” are an integral part of solving the technical problem of providing a “simulation model in all simulation modes from within a single application.” Id. at 16. Fifth, Appellant argues the Examiner erred by “fail[ing] to give the combination of specific claim elements its due weight” and by “not considering the claims ‘as an ordered combination.’” Id. at 17. Instead, Appellant argues, the Examiner focused on individual claim elements and “fail[ed] to appreciate the utilization of the variable specification of each simulation mode that defines which variables are fixed and which variables are freed during that simulation mode.” Id. Lastly, Appellant argues the Examiner erred by “fail[ing] to provide any of the forms of evidence that expressly support the assertion that the Appeal 2019-001261 Application 14/231,274 6 elements or combination of elements of the claims . . . are well-understood, routine, and conventional.” Id. at 19. We are not persuaded by Appellant’s arguments that the Examiner has erred for the reasons that follow. Principles of law Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include implicit exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. See Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). In determining whether a claim falls within a judicially 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)). Accordingly, we first determine the concept to which the claim is directed. 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. Kappas, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk.”). Concepts that have been determined to be patent ineligible abstract ideas 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 (Gottschalkv. Benson, 409 U.S. 63, 67 (1972)). Concepts that have been determined to be patent eligible include Appeal 2019-001261 Application 14/231,274 7 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))). If a 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 (internal 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. (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 guidance on the application of § 101 to patentability determinations. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019). Under step 1 of that guidance, we first determine whether the claim recites a statutory class (i.e., a process, machine, manufacture, or composition of matter). Id. at 53–54. If it does not, it is not patent eligible. If it does, we next determine whether the claim recites: Step 2A – Prong One: any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, Appeal 2019-001261 Application 14/231,274 8 certain methods of organizing human activity, such as a fundamental economic practice, or mental processes). Id. at 52, 54. If the claim does not recite a judicial exception, it is patent eligible. Id. at 54. If it does, we next determine whether the claim recites: Step 2A – Prong Two: additional elements that integrate the judicial exception into a practical application (see Manual of Patent Examining Procedure (MPEP) § 2106.05(a)–(c), (e)–(h) (9th Ed., Rev. 08-2017 (Jan. 2018)). 84 Fed. Reg. 50 at 54–55. If the claim integrates a judicial exception into a practical application, it is patent eligible. Id. If it does not, we next determine whether the claim recites: Step 2B: additional elements beyond the judicial exception that are more than “well-understood, routine, conventional” elements in the field (see MPEP § 2106.05(d)). Id. at 56. If the claim adds more than well-understood, routine, and convention additional elements, it is patent eligible. Id. If it does not, it is not patent eligible. Id. 2019 PEG Step 1 Under step 1 of the subject matter eligibility guidance, we first determine whether the claims recite a statutory class (i.e., a process, machine, manufacture, or composition of matter). Id. at 53–54. Claims 1–6 recite a machine (i.e., a system having a processor and memory device), claims 7–12 recite a manufacture (i.e. a computer-readable medium), and claims 13–18 recite a process (i.e., a processor executable method). See Appeal 2019-001261 Application 14/231,274 9 Appeal Br. 22–25 (Claims Appx.). Thus, all of claims 1–18 recite a statutory class. Accordingly, we next consider whether claims 1–18 recite judicial exceptions under step 2A, prong 1, of the subject matter eligibility guidance.2 2019 PEG Step 2A, prong one Under step 2A, prong 1 of the eligibility guidance, we determine whether a claim recites a judicial exception such as an abstract idea, law of nature, or natural phenomenon. 84 Fed. Reg. 50 at 54. To do so, we (1) identify the limitations in the claim (either individually or in combination) that recite an abstract idea, and (2) determine whether the identified abstract idea falls within one of the subject matter groupings consisting of (a) mathematical concepts (relationships, formulas, equations, or calculations), (b) methods of organizing human activity (fundamental economic practices, commercial or legal interactions, or managing behavior or relationships), and (c) mental processes (concepts performed in the mind such as observation, evaluation, judgment, and opinion). Id. at 52. Excepting limitations for a processor, a memory device, and software instructions stored on the memory device, claim 1 recites a system that simulates an industrial process by: representing a process entity [i.e., an industrial process] with a model that includes a set of one or more equations each comprised of one or more simulation variables; configuring the model to function in a process, fluid flow, or dynamic simulation mode by associating a variable specification with each mode defining which simulation 2 Appellant argues for the patentability of claims 1–18 as a group. See Appeal Br. 5–19. We select claim 1 from this group, and decide the rejection of claims 1–18 based on the rejection of claim 1. See 37 C.F.R. § 41.37(c)(iv). Appeal 2019-001261 Application 14/231,274 10 variables are fixed and which are freed during simulation in that mode; simulating the function of the process entity in a first simulation mode by solving the set of equations of the model for the freed simulation variables defined by the variable specification of the first simulation mode; and switching the model from the first to a second simulation mode by solving the set of equations of the model for the freed simulation variables defined by the variable specification of the second simulation mode, without changing the set of equations in the model. Appeal Br. 22 (Claims Appendix). Each of these limitations recites a recognized judicial exception. For example, a model that includes a set of one or more equations comprised of one or more simulation variables recites a mathematical equation. Associating a variable specification defining which simulation variables are fixed and which are freed in order to configure the model to operate in a particular mode (e.g., process, flow, or dynamic) recites a mathematical relationship (e.g., defining the input or boundary values of the mathematical equations in order to define and/or constrain their solution or inverting the model to invert the relationship between the fixed/freed variables (e.g., inverting y = f(x) to obtain x = f–1(y)). And solving the model’s set of equations for the freed simulation variables defined by the variable specification of the first/second simulation mode recites a mathematical calculation. See 84 Fed. Reg. at 52, 54. Accordingly, having determined claim 1 recites a plurality of judicial exceptions in the form of mathematical equations, relationships, and calculations, we next consider whether claim 1 recites additional elements that integrate these judicial exceptions into a practical application. Id. at 54– 55. Appeal 2019-001261 Application 14/231,274 11 2019 PEG Step 2A, prong two Under step 2A, prong 2, a claim that recites a judicial exception is not “directed to” that judicial exception if the claim as a whole “integrates the recited judicial exception into a practical application of the exception.” Id. at 54. This involves (a) identifying whether the claim recites elements in addition to the judicial exceptions, and (b) determining whether these additional elements individually or in combination integrate the judicial exceptions into a practical application. Id. at 54–55. Additional elements integrate judicial exceptions into a practical application when they (i) improve the functioning of a computer or some other technology, (ii) effect a particular treatment or prophylaxis for a disease or medical condition, (iii) implement or use the judicial exceptions in conjunction with particular machines or manufactures that are integral to the claim, (iv) transform or reduce a particular article to a different state or thing, or (v) do more than merely link the judicial exceptions to a particular technological environment. Id. at 55. Additional elements do not integrate judicial exceptions into a practical application when they (i) merely include instructions to implement the judicial exceptions on a computer, (ii) add insignificant pre- or post-solution activity, or (iii) do no more than link the judicial exceptions to a particular technological environment. Id. The additional elements in claim 1 that are not judicially recognized abstract ideas are (i) a processor, (ii) a memory device coupled to the processor, and (iii) software instructions comprising an application stored on the memory device and executable by the processor. These additional elements do not integrate simulating an industrial process by solving mathematical equations (i.e., a simulation model) based on input data specifying which equation variables are fixed and which are free (i.e., a Appeal 2019-001261 Application 14/231,274 12 variable specification) into a practical application because they do no more than implement the simulation on a computer. Id. at 55 (a judicial exception is not integrated into a practical application when a claim “includes instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea”). Accordingly, having determined that claim 1 is “directed to” a judicial exception because it does not recite additional elements that integrate its judicial exception into a practical application, we next determine whether the claim contains additional elements that, both individually and as an ordered combination, are more than well-understood, routine, or conventional. Id. at 56. 2019 PEG Step 2B Under step 2B, a claim that is “directed to” a judicial exception may nonetheless be patent eligible if it recites additional elements that, when considered both individually and as an ordered combination, provide an inventive concept. Id. at 56. An inventive concept may be present if the claim adds an additional limitation that is not a well-understood, routine, or conventional element in the field of endeavor. Id. However, an inventive concept is not present if the claim adds an additional limitation that is well- understood, routine, or conventional in the field of endeavor, specified at a high level of generality. Id. As discussed above, the additional limitations of claim 1 (i.e., a processor, memory, and software instructions stored in the memory for execution by the processor), considered both individually and as an ordered combination, do no more than recite a generic machine (i.e., a computer) for performing the judicial exception to which the claim is directed (i.e., solving a mathematical equation (simulation model) based on input data specifying Appeal 2019-001261 Application 14/231,274 13 which equation variables are fixed and which are free (variable specification)). For example, the Specification discloses that “[a]lthough described in connection with an exemplary computing system environment, embodiments of the aspects of the invention are operational with numerous other general purpose or special purpose computing system environments or configurations.” Spec. ¶ 187. Such computing systems can be “personal computers, server computers, hand-held or laptop devices, multiprocessor systems, microprocessor based systems, set top boxes, programmable consumer electronics, mobile telephones, network PCs, minicomputers, mainframe computers . . . or the like.” Id. Moreover, the “processor- executable instructions” described in the Specification “may be organized into one or more processor-executable components or modules,” may be “implemented with any number and organization of such components or modules,” and are “not limited to the specific processor-executable instructions of the specific components or modules illustrated in the figures and described herein.” Id. ¶ 190. For these reasons, the additional limitations recited in claim 1, considered both individually and as an ordered combination, fail to “‘transform the nature of the claim’ into a patent-eligible application.’” Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S. at 78). Accordingly, we agree with the Examiner that claim 1 is patent ineligible under 35 U.S.C. § 101, and sustain the Examiner’s rejection of claim 1. For the same reasons, we sustain the Examiner’s rejection of claims 2–18 as patent ineligible under 35 U.S.C. § 101. Appeal 2019-001261 Application 14/231,274 14 Rejection under 35 U.S.C. §103 The Examiner rejects claims 1–18 as obvious over Jana and Varma. See Final Act. 24–47. The Examiner finds Jana teaches all the limitations of claim 1 except for the hardware limitations (i.e., the processor, memory, and software instructions stored in memory), and the functional limitation of switching the model from a first simulation mode that solves for a set of freed simulation variables defined by the first variable specification to a second simulation mode that solves for a set of freed simulation variables defined by the second variable specification. See id. at 24–27. However, the Examiner finds Varma discloses these limitations. See id. at 27–32. Varma discloses A software plant process modeling system [that] operates in multiple modes. The software system uses process unit models. A process unit model includes at least one equation and at least one variable. The software system sets a status of a variable in the unit model to a first state. The first state is associated with a first mode of operation. The software system then sets the status of the same variable in the unit model to a second state. The second state is associated with a second mode of operation. The software system generates an open-equation model in operating in multiple modes. The software system receives a modification to at least one process unit model. Thus, a user may create a single plant process model for operation in multiple modes. Varma, code (57) (emphases added). Appellant argues that Varma does not teach switching a model from first to second simulation modes by switching the model’s freed simulation variables defined by first and second variable specifications. Appeal Br. 20. Rather, Appellant argues, “Varma teaches that ‘each unit operation model has a unit customization layer’ that ‘permits a user to override predefined unit specification[s].” Id. (quoting Varma 3:4–6). Appellant argues that Appeal 2019-001261 Application 14/231,274 15 although “Varma teaches that each unit includes a customization layer to specify which variables are fixed and which variables are freed for that particular unit,” that does not teach “associating a variable specification with each simulation mode to define fixed and freed variables for each simulation mode, as recited by the claims.” Id. at 21. We are not persuaded by Appellant’s argument. We first note that claim 1 requires the simulation model to include “one or more equations each comprised of one or more simulation variables.” Id. at 22 (Claims Appx) (emphasis added). That is, claim 1 allows the simulation model to consist of a single equation having a single variable. As discussed above, Varma’s abstract discloses a single unit, single variable simulation model that can be operated in two modes by switching the status of the model’s single variable. See Varma, code (57) (“The software system sets a status of a variable in the unit model to a first state. . . . associated with a first mode of operation. The software system then sets the status of the same variable in the unit model to a second state. . . . associated with a second mode of operation.”) (emphases added). For this reason alone, Appellant’s argument is not persuasive. Moreover, Appellant’s argument would be unpersuasive even if claim 1 required the simulation model to consist of multiple equations having multiple variables. Varma’s “unit” is an industrial process component (e.g., a pump) having a “model [that] represents the operation of the unit in terms of its calculation block.” Varma 7: 1–5. The unit model’s variables can be either dependent (representing “an equation output or a free variable”), independent-fixed (representing a constant), or independent-free (representing “an equation input”). Id. at 7:18–23. Appeal 2019-001261 Application 14/231,274 16 Varma teaches modelling an entire industrial process or plant using a “flowsheet model” that includes “stream” and “unit” models, where a stream model is created by “connect[ing] a unit’s entry or exit port to another unit’s exit or entry port.” Id. at 7:6–9, 7:51–57; see also id. at 8:37–40 (disclosing “model generator 502 creates a math model of the flowsheet for input to the solution engine 310. The math model is a large set of equations and variables which models the plant process.”). Varma teaches custom operations module 706 can customize the flowsheet model, and includes a “free-fixed variable module 708 [that] is used to free a variable that is currently fixed” and a “fix-freed variable module 710 [that] is used to fix a calculated variable that is currently free.” Id. at 11:56–60, 13:45–46, 13:61– 62. Customizing the flowsheet model allows a single “model or representation [to] be seamlessly used in multiple applications” or modes by “alter[ing] the status of flowsheet variables, thereby providing a seamless switching between modes using the single flowsheet module.” Id. at 15:31– 35. Varma also teaches that custom operations module 706 is accessible by “unit customization layer 702,” which can “customize unit models and stream models to enhance the analysis of a process model.” Id. at 11:52–56, 11:66–12:3 (emphases added). Taken together, Varma teaches a flowsheet model that consists of multiple interconnected unit models that simulates an industrial process. The flowsheet model’s variables, therefore, are ultimately unit model variables. Varma further teaches the flowsheet model has multiple simulation modes, and the model can be configured to operate in a given simulation mode by changing which of its’ variables are fixed or free and which are dependent or independent. Because the flowsheet model’s variables are also unit model variables, Varma teaches the flowsheet model’s Appeal 2019-001261 Application 14/231,274 17 simulation mode can be changed by changing the free/fixed and/or dependent/independent status of one or more variables in one or more of its unit models. CONCLUSION The Examiner’s rejection of claims 1–18 as directed to unpatentable subject matter is sustained. The Examiner’s rejection of claims 1–18 as obvious over Jana and Varma is sustained. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § References / Basis Affirmed Reversed 1–18 101 Unpatentable subject matter 1–18 1–18 103 Jana, Varma 1–18 Overall Outcome 1–18 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended. See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation