Concio Holdings LLC

Patent Trials and Appeals Board

Jan 9, 2020

14870538 - (D) (P.T.A.B. Jan. 9, 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.
14/870,538 09/30/2015 Lars-Berno Fredriksson 20056-137003-US 4502
22242 7590 01/09/2020
FITCH EVEN TABIN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 2100
CHICAGO, IL 60603-3406
EXAMINER
KNAPP, JUSTIN R
ART UNIT PAPER NUMBER
2112
MAIL DATE DELIVERY MODE
01/09/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LARS-BERNO FREDRIKSSON, KENT AKE LENNART
LENNARTSSON, and JONAS HENNING OLSSON
Appeal 2019-001087
Application 14/870,538
Technology Center 2100
BEFORE CAROLYN D. THOMAS, JEREMY J. CURCURI, and SCOTT
RAEVSKY, Administrative Patent Judges.
CURCURI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–18. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

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 Concio Holdings
LLC. Appeal Br. 3.
Appeal 2019-001087
Application 14/870,538
2
CLAIMED SUBJECT MATTER
The claims are directed to “a high speed protocol for control
networks.” Spec. ¶ 2. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method of communication over a common
control network, the method comprising:
sending from a communication device over the control
network a message packet having at least a data portion, an
error check portion, and an end of frame portion, the message
packet defined by bits having a plurality of bit quanta, wherein
data for the message packet is defined by a signal level at
defined bit quanta of a bit, the defined bit quanta being less than
every bit quanta of a bit;
sending additional information within the end of frame
portion of the message packet using bit quanta of the end of
frame portion other than the defined bit quanta;
wherein the additional information comprises a unique
identifier sufficient to confirm a portion of the message packet
embedding the additional information as the end of frame
portion.
REJECTION
Claims 1–18 are rejected under 35 U.S.C. § 101 as being directed to a
judicial exception without significantly more. Final Act. 2–4.
OPINION
The Judicial Exception Rejection of Claims 1–18
The Examiner determines claims 1–18 are directed to a judicial
exception without significantly more. Final Act. 2–4. In particular, the
Examiner determines the following:
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Application 14/870,538
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In analyzing claim 1 using Step 2A of Alice analysis in
view of Recognicorp v. Nintendo (and similar limitations of
claims 7 and 13) of the instant application, the limitations “a
message packet having at least a data portion, an error check
portion, and an end of frame portion, the message packet defined
by bits having a plurality of bit quanta, wherein data for the
message packet is defined by a signal level at defined bit quanta
of a bit, the defined bit quanta being less than every bit quanta of
a bit. .. [and] sending additional information within the end of
frame portion of the message packet using bit quanta of the end
of frame portion other than the defined bit quanta ... [and]
wherein the additional information comprises a unique identifier
sufficient to confirm a portion of the message packet embedding
the additional information as the end of frame portion...” are
directed to an abstract idea. Dependent claims 2–6, 8–12, and
14–18 recites additional limitations directed to the abstract idea.
Final Act. 2–3; see also Ans. 3–6.
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 U.S. 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. Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the 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
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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, 67 (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
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 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.”).
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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 (internal 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)
(alterations in original). “[M]erely requir[ing] generic computer
implementation[] fail[s] to transform that abstract idea into a patent-eligible
invention.” Id.
The U.S. Patent and Trademark Office (“USPTO”) recently published
revised guidance on the application of § 101. USPTO’s 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019); USPTO
October 2019 Update: Subject Matter Eligibility (Oct. 17, 2019). Under that
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 §§ 2106.05(a)–(c), (e)–(h)
(9th ed. 2018)).
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 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
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(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.
Are the claims patent-eligible?
Step One
Claim 1 recites a method, which falls within the “process” category of
35 U.S.C. § 101. Claim 7 recites a device, which falls with the “machine”
category of 35 U.S.C. § 101. Claim 13 recites an apparatus, which falls
within the “machine” category of 35 U.S.C. § 101. Thus, we must determine
whether the claims recite a judicial exception, and fail to integrate the
exception into a practical application. See 84 Fed. Reg. at 54–55. If both
elements are satisfied, the claim is directed to a judicial exception under the
first step of the Alice/Mayo test. See id.
Step 2A—Prong One
The Examiner determines claims 1–18 are directed to an abstract idea.
See Final Act. 2–3; see also Ans. 3–6.
Contrary to the Examiner’s determinations, we determine the claim
limitations determined by the Examiner to recite an abstract idea do not
correspond to certain methods of organizing human activity, mental
processes, or mathematical concepts. In particular, claim 1 recites the
following steps:
sending from a communication device over the control
network a message packet having at least a data portion, an
error check portion, and an end of frame portion, the message
packet defined by bits having a plurality of bit quanta, wherein
data for the message packet is defined by a signal level at
defined bit quanta of a bit, the defined bit quanta being less than
every bit quanta of a bit;
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sending additional information within the end of frame
portion of the message packet using bit quanta of the end of
frame portion other than the defined bit quanta;
wherein the additional information comprises a unique
identifier sufficient to confirm a portion of the message packet
embedding the additional information as the end of frame
portion.
We disagree with the Examiner’s determination that these activities recite an
abstract idea.
In the context of the invention, these steps describe sending a message
packet having a particular structure, sending additional information
embedded within the structure in a particular way and comprising a unique
identifier—they cannot be practically performed in the human mind. For
example, the human mind cannot perform the recited steps of “sending . . . a
message packet . . . the defined bit quanta being less than every bit quanta of
a bit”; “sending additional information . . . using bit quanta of the end of
frame portion other than the defined bit quanta . . . a unique identifier
sufficient to confirm a portion of the message packet embedding the
additional information as the end of frame portion.” More particularly, the
human mind cannot embed the unique identifier in the particular claimed
way within the particular structure of the packet—such recitations are not a
mental process. Similarly, these recitations are also simply not certain
methods of organizing human activity or mathematical concepts as described
in our guidance. See 84 Fed. Reg. at 52.
Put another way, the recited steps of “sending . . . a message packet
. . . the defined bit quanta being less than every bit quanta of a bit”;
“sending additional information . . . using bit quanta of the end of frame
portion other than the defined bit quanta . . . a unique identifier sufficient to
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confirm a portion of the message packet embedding the additional
information as the end of frame portion” are a process that only exists and
has meaning within the context of a computer environment and cannot be
practically performed in the human mind. See 84 Fed. Reg. at 52.
The Examiner does not sufficiently articulate why the claimed
concepts fall within the subject matter groupings of abstract ideas of
mathematical concepts, certain methods of organizing human activity, or
mental processes. See 84 Fed. Reg. 52.
Accordingly, we are persuaded by Appellant’s arguments that the
claimed subject matter does not recite an abstract idea because it only exists
and has meaning within the context of a computer environment:
The disclosure proposes a particular solution to improving the
end of frame confidence, and thus for the CRC confidence, by
embedding additional information including a unique identifier
into the end of frame portion. (Id. at ¶¶ 180–181.) This particular
solution is recited in each of the independent claims: “the
additional information comprises a unique identifier sufficient to
confirm a portion of the message packet embedding the
additional information as the end of frame portion.”
Appeal Br. 8; see also Appeal Br. 9 (citing Enfish), Reply Br. 2–4.
In addition, Appellant’s Specification discloses the following:
[A]n EOF with 36 recessive bits would give you a Hamming
Distance of six, which is a very good protection because
switching a dominant bit into a recessive bit requires a lot of
external energy. The problem with this solution is that it will not
be backward compatible to the existing CAN-solution and will
increase the overhead by 60% in a CAN-message with one byte.
Spec. ¶ 179. That is, the Specification discloses a need to make the EOF
more tolerant of bit-errors, and recognizes that simply adding extra recessive
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bits is a problematic solution. Claim 1 recites a different solution. See Claim
1; see also Spec. ¶¶ 180–181.
Accordingly, the Examiner has not sufficiently shown that claim 1
recites a judicial exception within the enumerated groupings of abstracts
ideas.
Moreover, even if arguably the claims were considered to recite an
abstract concept, because claim 1 overcomes a problem specifically arising
in the realm of computers, under Prong 2 “the claimed solution is necessarily
rooted in computer technology in order to overcome a problem specifically
arising in the realm of computer networks,” and, accordingly, the claims are
not directed to an abstract idea. DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245, 1257 (Fed. Cir. 2014).
Thus, we do not sustain the rejection of independent claim 1 under 35
U.S.C. § 101. Claims 2–6 depend from claim 1. We, therefore, also do not
sustain the rejection of those claims under 35 U.S.C. § 101.
Independent claims 7 and 13 recite similar language as claim 1. We,
therefore, also do not sustain the rejection of independent claims 7 and 13
under 35 U.S.C. § 101. Claims 8–12 and 14–18 depend from claims 7 and
13, respectively. We, therefore, also do not sustain the rejection of those
claims under 35 U.S.C. § 101.

CONCLUSION
The Examiner’s rejection is reversed.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–18 101 Eligibility 1–18

REVERSED