Daniel L. Gysling

Patent Trials and Appeals Board

Jul 22, 2019

14719046 - (D) (P.T.A.B. Jul. 22, 2019)

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.
14/719,046 05/21/2015 Daniel L. Gysling CC-0997D1 1057
68653 7590 07/22/2019
EXPRO METERS, INC.
50 BARNES PARK NORTH
WALLINGFORD, CT 06492
EXAMINER
DINH, LYNDA
ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
07/22/2019 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):
joanne.varanelli@exprogroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DANIEL L. GYSLING
____________________

Appeal 2018-009039
Application 14/719,046
Technology Center 2800
____________________
Before, BRADLEY R. GARRIS, CATHERINE Q. TIMM, and
KAREN M. HASTINGS, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection (Final Act.) (Sept. 06, 2017) rejecting claims 1, 4,
5, and 8–10 under 35 U.S.C. § 101 as directed to patent-ineligible subject
matter and further supported by Examiner’s Answer (Ans.) (Jul. 18, 2018).
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
The Appellant argues that the claims are not directed to an abstract
idea, are directed to patent-eligible subject matter, and the Examiner’s
should be reversed (Appeal Br. 11–14). For the reasons explained below,

1 Appellant is the applicant, “Expro Meters, Inc.”, which is also stated to be
the real party in interest (Appeal Br. 3).
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we determine that the Examiner has not established that the claims are
directed to patent-ineligible subject matter.

We Reverse.
CLAIMED SUBJECT MATTER
The claims are directed to a method for determining a volumetric
flow rate for a fluid flow “with an unknown or varying composition
passing within a pipe” and adjusts “the fluid composition values until an
error value compares acceptably to a predetermined condition” (Appeal
Br. 11; See also, Specification ¶¶19 and 28).
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method of determining a volumetric flow rate for
a single phase fluid flow passing within a pipe, the method
comprising:
measuring a flow pressure value and a flow
temperature value for the fluid flow within the pipe;
using a differential pressure (DP) meter to determine a
momentum value for the fluid flow;
using a SONAR fluid flow meter to measure a velocity
value of the fluid flow;
using a processor to execute stored instructions, the
stored instructions including an equation of state model for
the fluid flow, wherein the instructions cause the processor
to:
(a) determine a measured density value of the
fluid flow using the determined momentum value and
the measured velocity value;
(b) calculate a density value for the fluid flow,
using the measured flow pressure and temperature
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values, a first set of fluid flow composition values, and
the equation of state model;
(c) compare the measured density value and the
calculated density value to determine an error value
representative of a difference between the measured
density value and the calculated density value; and
(d) compare the error value to a predetermined
condition, and when:
(1) the condition is met use at least one of
the measured density value or the calculated
density value to determine the volumetric flow
rate of the fluid flow; or
(2) the condition is not met, the processor
is adapted to produce a modified set of fluid
flow composition values and iteratively repeat
step (a); and (b) using the modified set of fluid
flow compositional values, and (c), and (d) until
the condition is met.

Claims Appendix 17.

Independent claim 5 is directed to an apparatus corresponding to
the method of claim 1, and remaining independent claim 9 is directed to
a method similar to the method of claim 1 (Claims Appendix 18, 19).

ANALYSIS
Standard for Patent Ineligibility
In issues involving subject matter eligibility, our inquiry focuses
on whether the claim satisfies the two-step test set forth by the Supreme
Court in Alice Corp. v. CLS Bank lnt'l, 573 U.S. 208 (2014). The
Supreme Court instructs us to “first determine whether the claims at
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issue are directed to a patent-ineligible concept,” Id. at 216–218. If the
initial threshold is met, we then move to the second step, in which we
“consider the elements of each claim both individually and 'as an ordered
combination' to determine whether the additional elements ‘transform the
nature of the claim’ into a patent-eligible application.” Id. at 217
(quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S.
66, 79, 78 (2012)). The Supreme Court describes the second step as a
search for “an ‘inventive concept’– i.e., an element or combination of
elements that is ‘sufficient to ensure that the patent in practice amounts
to significantly more than a patent upon the [ineligible concept] itself.’”
Id. (quoting Mayo, 566 U.S. at 72–73).
The USPTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Guidance”). The Guidance refers to patent-
ineligible concepts as judicial exceptions. Under the Guidance, 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),
(designated as Step 2A (Prong 1) in the Guidance); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)) (designated as
Step 2A (Prong 2) in the Guidance).
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:
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(3) adds a specific limitation beyond the judicial exception that are 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 (designated as Step 2B in the Guidance).
Step 2A (Prong 1) and Step 2A (Prong 2) are used for the analysis
under the first step of Alice, while Step 2B informs the analysis under the
second step of Alice. See Memorandum.

Examiner's Findings and Conclusion
At the first step of the Alice inquiry, the Examiner determines claims
1, 4, 5, and 8–10 are directed to “a method … of measuring a flow pressure
value, determine a momentum value, measure velocity value, and using a
processor to determine a measured density value, compare the he measured
density value and the calculated density value to determine, compare the
error value based on the condition and repeat steps,” (Final Act. 6) which is
an abstract idea because these steps were best analogized to “collecting
information and analyzing it.” Electric Power Group, LLC v. Alstom, S.A.,
830 F.3d 1350, 1351–52, 119 USPQ2d 1739, 1740 (Fed. Cir. 2016) (Ans. 3).
At the second step of the Alice inquiry, the Examiner concludes that
the additional elements “(i.e. used convention equipment such as flow meter,
DP meter, and Sonar)” are well understood, routine and conventional in the
relevant field of art, and thus did not amount to significantly more than the
abstract idea. (Final Act. 6). Examiner asserted further that the processor
recited in the claims is generic and merely perform generic computer
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function and thus do not amount to significantly more than the abstract idea
(Id.).
The Examiner reiterated this position and asserted that the
additional elements of the claim are well understood and conventional
(e.g., Ans. 6). The Examiner asserts that Appellant’s invention is not
linked to a specific technological field and no improvement to the
technology was apparent from the claims (e.g., Ans. 7–9). The Examiner
also states that the steps involving a mathematical algorithm recited in
the claims are routine steps which involve measuring and collecting data
with conventional equipment, relying on GmbH v. Guidewire Software
Inc. and Alice (Ans. 11, 12).

Appellant’s Contentions
Appellant’s arguments rely upon Thales, Corewireless, Rapid
Litigation, Enfish, and Diehr (Appeal Br. 9). Appellant, however, primarily
relies on Diehr to support their argument for patent eligibility (Appeal Br.
10).
Appellant asserts that Diehr “improved upon prior art molding
methods by constantly measuring the actual temperature inside the mold,
recalculating the ideal cure time and automatically opening the press when
the ideal cure time equal the actual elapsed” (Appeal Br. 10). Appellant
analogizes the claimed invention to Diehr by arguing it
determines a measured density value of the fluid flow using a
determined momentum value and a measured velocity value,
calculates a density value using measured flow pressure and
temperature values, a first set of fluid flow composition values, and an
equation of state model, compared the measured density value and the
calculated density value to determine an error value representative of
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a difference between the measured density value and the calculated
density value, and compared the error value to a
predetermined condition. If the predetermined condition is met, at
least one of the measured density value or the calculated density value
is used to determine the volumetric flow rate of the fluid flow

(Appeal Br. 11).
Appellant further argues that their invention is patent eligible as it is
directed towards “adjust[ing] the fluid composition values until an error
value compares acceptably to a predetermined condition.” (Appeal Br.
11). Appellant asserts that the claims are directed to a specific method or
apparatus for providing increased accuracy and confidence in a volumetric
flow rate within a pipe where the composition of the flow may be unknown
or vary over time. (Appeal Br. 13; Spec. ¶¶ 19–30).

Our Review
Applying the guidance set forth in the Memorandum, we conclude the
Examiner erred in rejecting the claims as being directed to patent-ineligible
subject matter. Under Step 2A, Prong One of the Guidance, we first
consider whether the claim recites a judicial exception. Guidance, 84 Fed.
Reg. at 51. The Guidance organizes the abstract-idea exception into the
following subject matter groupings: mathematical concepts, certain methods
of organizing human activity (e.g., a fundamental economic practice), and
mental processes. Id. at 52. The mathematical-concept grouping includes
mathematical relationships, calculations, equations, and formulas.
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Here, the three independent claims2 recite a mathematical concept of
determining a measured density value of the fluid flow, calculating a density
value of the fluid flow, comparing the measured and calculated values to
determine an error value, and comparing the error value to a predetermined
condition as recited in each independent claim. Appellant’s Specification
provides further details of the mathematical relationship of the above
measured and calculated values and that the recited processor applies the
mathematical relationship to determine if the predetermined condition is met
(Spec. ¶¶ 19–30). Accordingly, we conclude under Step 2A, Prong 1 of the
Memorandum that the claims recite the judicial exception of an abstract idea
of a mathematical concept.
Nonetheless, a claim may integrate the judicial exception into a
practical application when, for example, it reflects an improvement to
technology or a technical field. Guidance, 84 Fed. Reg. at 55 n.25 (citing
MPEP § 2106.05(a)). For instance, the Federal Circuit found claims eligible
when they were directed to a “particular configuration of inertial sensors and
a particular method of using the raw data from the sensors,” which improved
the accuracy of calculating an object's position and orientation. Thales
Visionix, Inc. v. United States, 850 F.3d 1343, 1349 (Fed. Cir. 2017), cited in
MPEP § 2106.05(a)(II)(vii). Although the claims used mathematical
equations, the Federal Circuit in Thales explained that “[t]he mathematical
equations are a consequence of the arrangement of the sensors and the
unconventional choice of reference frame in order to calculate position and

2 The three independent claims in this appeal recite substantially similar
functions as a method (claim 1), an apparatus (claim 5), and another similar
method to that of claim 1 (claim 9).
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orientation.” Id. The claimed system eliminated “many ‘complications’
inherent in previous solutions” for determining an object's position and
orientation. Id. at 1348.
On the other hand, a claim does not integrate the abstract idea into a
practical application when it merely adds insignificant extra-solution activity
or generally links the judicial exception's use to a particular technological
environment or field. Guidance, 84 Fed. Reg. at 55 n.32 (citing MPEP §
2106.05(h)). For example, in Parker v. Flook, the claim used a mathematical
formula to calculate a numerical limit on a process variable in the catalytic
chemical conversion of hydrocarbons. 437 U.S. 584, 586 (1978), cited in
MPEP § 2106.05(h). The Supreme Court rejected the argument that the
claim was made eligible through its limitations to the petrochemical field
and oil refining. Id. at 589-91. Reflecting on this case, the Supreme Court in
Bilski v. Kappos commented that “Flook established that limiting an abstract
idea to one field of use or adding token postsolution components did not
make the concept patentable.” 561 U.S. 593, 612 (2010).
We disagree with the Examiner that the recited limitations are merely
“collecting information and analyzing” data and add token additional
elements to the data analysis (Final Act. 6; Ans. 3 and 10).
Appellant directs our attention to their Specification ¶ 19 where it
specifically states “[o]ne of the challenges of multiphase flow measurement
is that the composition of a given flow is often not known, and even if
known, it can vary over time. As will be described below, embodiments of
the present invention permit the determination of volumetric flow rates of
the different phases of the multiphase flow” (Appeal Br. 15). Appellant
summarizes their position by asserting that “the appellant has discovered an
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important problem; i.e. that a challenge of multiphase flow measurement is
that the composition of a given flow is often unknown, and even if known
the composition can vary over time” (Id.).
Here, we find this to be similar to the claims at issue in Diehr and
Thales, in which mathematical concepts were used to improve particular
technology. See Diehr, 450 U.S. at 187 (concluding that when “computer
use incorporated in the process patent significantly lessens the possibility of
‘overcuring’ or ‘undercuring,’ the process as a whole does not thereby
become unpatentable subject matter"); Thales, 850 F.3d at 1348–1349
(finding patent-eligibility upon considering “claims directed to a new and
useful technique for using sensors to more efficiently track an object on a
moving platform'”); see also MPEP § 2106.05(a)(II) (“The courts have also
found that improvements in technology beyond computer functionality may
demonstrate patent eligibility”).
Appellant describes a technical solution to resolve the issue in
detecting and measuring varying or unknown compositions flowing through
a pipe. The claim sets forth a specific mathematical relationship to
determine the composition within the pipe and to minimize the error
function3 (Appeal Br. 16); therefore, Appellant’s described technical
solution is required by the independent claims.
Accordingly, we conclude the claimed invention is integrated into a
practical application, and under the guidance provided in the Memorandum,
the claims have not been shown to be patent-ineligible because they
ultimately are not “directed to” a judicial exception.

3 Specification ¶27–29.
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Because we find the claims are not directed to an abstract idea, we
need not proceed to determine whether the claims provide an inventive
concept. See Guidance, 84 Fed. Reg. at 56 (discussing "Step 2B: If the
Claim Is Directed to a Judicial Exception, Evaluate Whether the Claim
Provides an Inventive Concept").
Thus, we do not sustain the rejection of claims 1, 4, 5, and 8–10.

DECISION

The Examiner’s §101 rejection is reversed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
REVERSED