Elwha LLC

Patent Trials and Appeals Board

Dec 14, 2020

2019006021 (P.T.A.B. Dec. 14, 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.
15/213,133 07/18/2016 JESSE R. CHEATHAM III 0314-035-001-000000 1090
44765 7590 12/14/2020
INTELLECTUAL VENTURES - ISF
ATTN: DOCKETING, ISF
3150 - 139th Ave SE
Bldg. 4
Bellevue, WA 98005
EXAMINER
NIQUETTE, ROBERT R
ART UNIT PAPER NUMBER
3696
NOTIFICATION DATE DELIVERY MODE
12/14/2020 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):
ISFDocketInbox@intven.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JESSE R. CHEATHAM III, WILLIAM DAVID DUNCAN,
RODERICK A. HYDE, YAROSLAV A. URZHUMOV,
and LOWELL L. WOOD JR.
____________

Appeal 2019-006021
Application 15/213,133
Technology Center 3600
____________

Before JOHN A. JEFFERY, JOHN A. EVANS, and
CATHERINE SHIANG, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Under 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject claims 1–4, 12–15, 32, 61, 62, 66, 86, 88–90, 222, 347,
and 460. 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. Appellant identifies the real party in interest as Elwha LLC,
an affiliate of The Invention Science Fund II, LLC. Appeal Br. 4.
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STATEMENT OF THE CASE
Appellant’s invention determines freight charge for an unmanned
aircraft carrying a payload as freight on a mission to a destination based on
the aircraft’s aerodynamic profile. Spec. ¶ 17. This aerodynamically-
exposed payload, which may be an attached pod, is carried external to the
aircraft’s base. Spec. ¶ 153. Claim 1 is illustrative:
1. A payload management system to determine freight charge
for an unmanned aircraft system providing an aircraft configured to
carry a payload with an aerodynamically-exposed portion on a
mission from an originator by a carrier to a destination in operating
conditions, the payload management system comprising:

instrumentation operatively coupled to at least one of the
aircraft and the payload; and

a computing system operatively coupled to the instrumentation,
the computing system being configured to determine an aerodynamic
profile for the aircraft considering an effect of the payload on the
flight characteristics of the aircraft from measurement data provided
to the computing system by the instrumentation and to calculate the
freight charge for carrying the payload as freight on the mission to the
destination.

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THE REJECTION2
The Examiner rejected claims 1–4, 12–15, 32, 61, 62, 66, 86, 88–90,
222, 347, and 4603 under 35 U.S.C. § 101 as directed to ineligible subject
matter. Final Act. 4–8.4

FINDINGS, CONCLUSIONS, AND CONTENTIONS
The Examiner determines that the claimed invention is directed to an
abstract idea, namely collecting data and determining shipping costs, which
is not only said to be a fundamental economic practice, but also a process
that can be performed mentally. See Ans. 5–9. According to the Examiner,
the additional recited computer elements perform generic computer
functions that do not add significantly more to the abstract idea. Ans. 10–
11.
Appellant argues that the claims are eligible because, among other
things, they do not recite mathematical concepts, certain methods of
organizing human activity, or mental processes. Appeal Br. 9–19; Reply Br.
4–8, 15–16. Appellant adds that the claimed invention is also integrated into
a practical application by, among other things, reciting instrumentation

2 Because the Examiner withdrew the obviousness rejection (Ans. 4), that
rejection is not before us.
3 Although the Examiner’s analysis also includes cancelled claim 360 (see
Final Act. 4), we nonetheless omit that claim here for clarity and treat the
Examiner’s error in this regard as harmless. Accord Appeal Br. 9 (omitting
claim 360 in the claims indicated as rejected under § 101).
4 Throughout this opinion, we refer to (1) the Final Rejection mailed October
31, 2018 (“Final Act.”); (2) the Appeal Brief filed April 24, 2019 (“Appeal
Br.”); (3) the Examiner’s Answer mailed June 17, 2019 (“Ans.”); and (4) the
Reply Brief filed August 9, 2019 (“Reply Br.”).
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operatively coupled to at least one of the aircraft and payload that gathers
measurement data, and a computing system operatively coupled to the
instrumentation that determines (1) an aerodynamic profile considering the
payload’s effect on the aircraft’s flight characteristics, and (2) freight charge
for carrying the payload. Appeal Br. 19–24. According to Appellant, the
claimed invention not only recites a particular machine integral to
determining the aerodynamic profile and freight charge, the Examiner
ignored various elements of the claim, including the recited instrumentation.
Reply Br. 8–11. Appellant adds that the recited elements, including the
recited application-specific instrumentation, add significantly more to the
abstract idea than any asserted judicial exception. Reply Br. 11–12.

ISSUE
Under § 101, has the Examiner erred in rejecting claims 1–15 and 17–
22 as directed to ineligible subject matter? This issue turns on whether the
claims are directed to an abstract idea and, if so, whether the recited
elements—considered individually and as an ordered combination—
transform the nature of the claims into a patent-eligible application of that
abstract idea.

PRINCIPLES OF LAW
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 long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
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ideas” are not patentable. See, 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, 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)). 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. 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 187 n.7 (quoting Corning v. Burden, 56 U.S.
(15 How.) 252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S.
at 67 (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
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mathematical formula.” Diehr, 450 U.S. at 176; 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.”). That
said, the Supreme 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.”).
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 (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. (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.
Under the subject matter eligibility guidance in the Manual of Patent
Examining Procedure (MPEP) (9th ed. Rev. 10.2019, June 2020), 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
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organizing human activity such as a fundamental economic
practice, or mental processes) (see MPEP § 2106.04); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP §§ 2106.04; 2106.04(d);
2106.05(a)–(c), (e)–(h)).
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, and conventional in the field
(see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See MPEP § 2106.05.

ANALYSIS
Claims 1–4, 12–15, 32, 61, 62, 66, 86, 88–90, and 460: Alice/Mayo Step
One

Representative independent claim 1 recites:
A payload management system to determine freight charge for
an unmanned aircraft system providing an aircraft configured to carry
a payload with an aerodynamically-exposed portion on a mission from
an originator by a carrier to a destination in operating conditions, the
payload management system comprising:

instrumentation operatively coupled to at least one of the
aircraft and the payload; and

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a computing system operatively coupled to the instrumentation,
the computing system being configured to determine an
aerodynamic profile for the aircraft considering an effect of the
payload on the flight characteristics of the aircraft from
measurement data provided to the computing system by the
instrumentation and to calculate the freight charge for carrying
the payload as freight on the mission to the destination.

As the Specification explains, Appellant’s system determines freight
charge for an unmanned aircraft carrying a payload as freight on a mission to
a destination based on the aircraft’s aerodynamic profile. Spec. ¶ 17. This
aerodynamically-exposed payload, which may be an attached pod, is carried
external to the aircraft’s base. Spec. ¶ 153.
The aircraft’s aerodynamic profile is determined for the aircraft to
carry the payload. Spec. ¶ 166. According to the Specification’s paragraph
166, the aerodynamic profile considers “data/information such as flight
characteristics, effects, etc.,” and may comprise various data types
configured to consider aerodynamic performance and flight characteristics
and other information relating to using the aircraft and carrying the payload.
These flight characteristics include, among other things, mass properties,
drag and lift effects on the aircraft carrying the payload, etc. Spec. ¶ 167.
In one aspect, freight charge comprises (1) a base charge, and (2) a
surcharge that includes a penalty charge that accounts for the actual or
anticipated fuel or energy use given the aircraft’s loaded aerodynamic
profile. Spec. ¶ 210. Freight charge can also be based on the payload’s
form, including its shape and dimensions. Spec. ¶ 211. As the
Specification’s paragraph 214 explains, payload configurations that
adversely affect aerodynamic performance, such as increased drag, larger
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mass, and oscillatory effects, can have higher freight charges compared to
payload configurations with better aerodynamic performance.
Turning to claim 1, we first note that the claim recites a system and,
therefore, falls within the machine category of § 101. But despite falling
within this statutory category, we must still determine whether the claim is
directed to a judicial exception, namely an abstract idea. See Alice, 573 U.S.
at 217. To this end, we must determine whether the claim (1) recites a
judicial exception, and (2) fails to integrate the exception into a practical
application. See MPEP § 2106.04(II). If both elements are satisfied, the
claim is directed to a judicial exception under the first step of the Alice/Mayo
test. See id.
The Examiner determines that claim 1 is directed to an abstract idea,
namely collecting data and determining shipping costs, which is not only
said to be a fundamental economic practice, but also a process that can be
performed mentally. See Ans. 5–9. To determine whether a claim recites an
abstract idea, we (1) identify the claim’s specific limitations that recite an
abstract idea, and (2) determine whether the identified limitations fall within
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certain subject matter groupings, namely, (a) mathematical concepts5; (b)
certain methods of organizing human activity6; or (c) mental processes.7
Here, apart from the recited (1) “instrumentation operatively coupled
to at least one the aircraft and the payload”; (2) “computing system
operatively coupled to the instrumentation”; and (3) the instrumentation
providing measurement data to the computing system, all of claim 1’s
recited limitations fit squarely within at least one of the above categories of
the USPTO’s guidelines. When read as a whole, the recited limitations are
directed to calculating a freight charge for an aircraft-carried payload based
on information regarding the payload’s aerodynamic effect on the aircraft.
That is, apart from the recited (1) “instrumentation operatively
coupled to at least one the aircraft and the payload”; (2) “computing system
operatively coupled to the instrumentation”; (3) the instrumentation
providing measurement data to the computing system, the claimed
limitations recite mental processes and certain methods of organizing human

5 Mathematical concepts include mathematical relationships, mathematical
formulas or equations, and mathematical calculations. See MPEP
§§ 2106.04(a); 2106.04(a)(2)(I).
6 Certain methods of organizing human activity include fundamental
economic principles or practices (including hedging, insurance, mitigating
risk); commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions). See MPEP §§ 2106.04(a);
2106.04(a)(2)(II).
7 Mental processes are concepts performed in the human mind including an
observation, evaluation, judgment, or opinion. See MPEP §§ 2106.04(a);
2106.04(a)(2)(III).
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activity including fundamental economic practices and commercial
interactions. See MPEP §§ 2106.04(II)–(III).
First, the limitation calling for the system being configured to
determine an aerodynamic profile for the aircraft considering an effect of
the payload on the flight characteristics of the aircraft from measurement
data provided to the . . . system . . . and to calculate the freight charge for
carrying the payload as freight on the mission to the destination can be done
entirely mentally by merely thinking about these elements or writing them
down on a piece of paper. Cf. CyberSource Corp. v. Retail Decisions, Inc.,
654 F.3d 1366, 1372 (Fed. Cir. 2011) (noting that a person could construct a
map of credit card numbers by merely writing down a list of credit card
transactions made from a particular IP address).
We reach this conclusion noting that the recited aerodynamic profile
is not only claimed at a high level of generality, it is also described at a high
level of generality in the Specification. According to the Specification’s
paragraph 166, the aerodynamic profile (1) considers data/information such
as flight characteristics, effects, etc., and (2) may comprise various data
types configured to consider aerodynamic performance and flight
characteristics and other information relating to using the aircraft and
carrying the payload. Nothing in this broad and non-limiting disclosure
precludes determining such a profile mentally. That the aerodynamic effect
of cargo weight is a common consideration regarding an aircraft’s
performance only underscores this point. See, e.g., Skyway Aviation Corp. v.
Minneapolis, N. & S. Ry. Co., 326 F.2d 701, 705 (8th Cir. 1964) (“No rule
could spell out where every plane must reduce altitude for normal approach
as it is common knowledge that what is ‘normal’ would depend on
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numerous factors, i.e., the size and type of plane, landing speed, availability
of landing flaps, the weight of the cargo, the number of aircraft in the
landing pattern and their proximity.”) (emphasis added).
Furthermore, leaving aside the fact that providing measurement data
to the system as claimed merely gathers data, measurement data can be
provided via a piece of paper to determine the aerodynamic profile based
on that data. That it is conventional to use (1) aircraft systems, such as
helicopters, to carry aerodynamically-exposed payloads weighing up to ten
tons, and (2) other types of airships to carry aerodynamically-exposed
payloads weighing at least 100 tons or more only underscores that the
associated aerodynamic profile can be determined entirely mentally via mere
observation and logical reasoning. See In re Piasecki, 745 F.2d 1468, 1469
(Fed. Cir. 1984) (“Helicopters are used for vertical-lift, short-haul transport,
but normal helicopter lifting capacity is limited to approximately ten tons.”);
see also id. (“The invention relates to air transport of very heavy loads,
weighing up to a hundred tons or more. It is especially suited to the
transport of large integrated loads such as power plant assemblies and other
bulky and heavy prefabricated structures . . . .”). Cf. CyberSource, 654 F.3d
at 1372 (noting that a recited step that utilized a map of credit card numbers
to determine validity of a credit card transaction could be performed entirely
mentally by merely using logical reasoning to identify a likely instance of
fraud by merely observing that numerous transactions using different credit
cards all originated from the same IP address).
Furthermore, calculating a freight charge for carrying the payload is
not only a fundamental economic practice, but it also could be done entirely
mentally by merely thinking about the payload’s characteristics, such as its
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size and weight, and calculating a freight charge commensurate with those
characteristics—a calculation that can be done either entirely mentally or
using pen and paper. That such aerodynamically-based calculations are
conventional in the aviation industry—including calculating charges for
cargo transported by helicopter—only underscores this point. See, e.g.,
Supreme Foodservice GmbH v. United States, 109 Fed. Cl. 369 (2013)
(comparing transportation rates per pound in dollar amounts for helicopter,
fixed wing, and ground transportation, respectively); McElderry v. Cathay
Pacific Airways, Ltd., 678 F. Supp. 1071, 1077 (S.D. N.Y. 1988) (holding an
airline’s $10 excess baggage fee was legal under the governing weight-based
rule); Cruz v. American Airlines, Inc., 1997 WL 33441909, at *1 (D.D.C.
1997) (non-precedential) (noting that Plaintiff paid $135 in overweight
charges upon checking luggage with American Airlines); Anderson v.
American Airlines, Inc., 2011 WL 855820, at *1 (N.D. Cal. 2011) (non-
precedential) (noting that additional charges apply for oversized and
overweight items for most domestic economy air travel); Chattopadhyay v.
Aeroflot Russian Airlines, 2011 WL 13220279, at *1 (C.D. Cal. 2011) (non-
precedential) (noting that Platintiff was charged $100 for an overweight
checked bag).
Accordingly, the recited aerodynamic profile determination and
freight charge calculation fall squarely within the mental processes and
certain methods of organizing human activity categories of the USPTO’s
guidelines and, therefore, recite an abstract idea. See MPEP
§§ 2106.04(a)(2)(II)–(III).
Therefore, apart from the recited (1) “instrumentation operatively
coupled to at least one the aircraft and the payload”; (2) “computing system
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operatively coupled to the instrumentation”; and (3) the instrumentation
providing measurement data to the computing system, all of claim 1’s
recited limitations fit squarely within at least one of the above categories of
the USPTO’s guidelines and, therefore, recite an abstract idea. See MPEP
§§ 2106.04(II)–(III).
Notably, the three elements enumerated above are the only recited
elements beyond the abstract idea, but these additional elements, considered
individually and in combination, do not integrate the abstract idea into a
practical application when reading claim 1 as a whole.
First, we are not persuaded that the claimed invention improves
a computer or its components’ functionality or efficiency, or otherwise
changes the way those devices function, at least in the sense contemplated
by the Federal Circuit in Enfish LLC v. Microsoft Corporation, 822 F.3d
1327 (Fed. Cir. 2016). The claimed self-referential table in Enfish was a
specific type of data structure designed to improve the way a computer
stores and retrieves data in memory. Enfish, 822 F.3d at 1339. To the extent
Appellant contends that the claimed invention uses such a data structure to
improve a computer’s functionality or efficiency, or otherwise change the
way that device functions, there is no persuasive evidence on this record to
substantiate such a contention.
To the extent that Appellant contends that the claimed invention is
rooted in technology because it is ostensibly directed to a technical solution
(see Appeal Br. 9–24), we disagree. Even assuming, without deciding, that
the claimed invention can calculate a freight charge for an aircraft-carried
payload based on information regarding the payload’s aerodynamic effect on
the aircraft faster or more efficiently than doing so manually, any speed or
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efficiency increase comes from the capabilities of the generic computer
components—not the recited process itself. See FairWarning IP, LLC v.
Iatric Systems, Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016) (citing Bancorp
Services, LLC v. Sun Life Assurance Co., 687 F.3d 1266, 1278 (Fed. Cir.
2012) (“[T]he fact that the required calculations could be performed more
efficiently via a computer does not materially alter the patent eligibility of
the claimed subject matter.”)); see also Intellectual Ventures I LLC v. Erie
Indemnity Co., 711 F. App’x 1012, 1017 (Fed. Cir. 2017) (non-precedential)
(“Though the claims purport to accelerate the process of finding errant files
and to reduce error, we have held that speed and accuracy increases
stemming from the ordinary capabilities of a general-purpose computer do
not materially alter the patent eligibility of the claimed subject matter.”).
Like the claims in FairWarning, the focus of claim 1 is not on an
improvement in computer processors as tools, but on certain independently
abstract ideas that use generic computing components as tools. See
FairWarning, 839 F.3d at 1095.
Nor is this invention analogous to that which the court held eligible in
McRO, Inc. v. Bandai Namco Games America, Inc., 837 F.3d 1299 (Fed.
Cir. 2016). There, the claimed process used a combined order of specific
rules that rendered information in a specific format that was applied to create
a sequence of synchronized, animated characters. McRO, 837 F.3d at 1315.
Notably, the recited process automatically animated characters using
particular information and techniques—an improvement over manual three-
dimensional animation techniques that was not directed to an abstract idea.
Id. at 1316.
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But unlike the claimed invention in McRO that improved how the
physical display operated to produce better quality images, the claimed
invention here calculates a freight charge for an aircraft-carried payload
based on information regarding the payload’s aerodynamic effect on the
aircraft. This generic computer implementation is not only directed to
mental processes and certain methods of organizing human activity, but also
does not improve a display mechanism as was the case in McRO. See SAP
Am. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) (distinguishing
McRO).
Nor is this case analogous to Thales Visionix Inc. v. United States, 850
F.3d 1343 (Fed. Cir. 2017). There, the court held eligible claims reciting
determining an orientation of an object relative to a moving reference frame
based on signals from two inertial sensors mounted respectively on the
object and on the moving reference frame. Id. at 1345–49. In reaching its
eligibility conclusion, the court noted that the claimed invention used inertial
sensors in an unconventional manner to reduce errors in measuring a moving
object’s relative position and orientation on a moving reference frame. Id. at
1348–49.
That is not the case here. To the extent that Appellant contends that
the claimed invention here is directed to such technical improvements and
capabilities (see Appeal Br. 14–25), we disagree, particularly given the
claimed invention’s high level of generality.
Nor are we persuaded that the claimed invention is tied to a particular
machine to satisfy the machine-or-transformation test as Appellant seems to
suggest. See Reply Br. 9. To be sure, a claim that transforms a particular
article to another state or thing or is tied to a particular machine to satisfy the
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machine-or-transformation test can be a “useful clue” to eligibility in the
Alice/Mayo framework. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709,
716 (Fed. Cir. 2014) (quoting Bilski v. Kappos, 561 U.S. 593, 594 (2010));
see also In re Bilski, 545 F.3d 943, 954 (Fed. Cir. 2008), aff’d sub nom.
Bilski, 561 U.S. at 593. Despite not being the sole eligibility test, the
machine-or-transformation test can nevertheless indicate whether additional
elements integrate the exception into a practical application. See MPEP
§§ 2106.04(d); 2106.05(b), (c).
It is well settled, however, that whether a recited device is a tangible
system or, in 35 U.S.C. § 101 terms, a “machine,” is not dispositive to
eligibility. ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759, 770 (Fed.
Cir. 2019) (quoting In re TLI Commc’ns, 823 F.3d 607, 611 (Fed. Cir. 2016)
(“[N]ot every claim that recites concrete, tangible components escapes the
reach of the abstract-idea inquiry.”)). For a machine to impose a meaningful
limit on the claimed invention, it must play a significant part in permitting a
claimed method to be performed, rather than function solely as an obvious
mechanism for permitting a solution to be achieved more quickly. Versata
Dev. Grp. v. SAP America, Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015); see
also MPEP § 2106.05(b)(II) (citing Versata). The latter role is the case here,
for the recited (1) “instrumentation operatively coupled to at least one the
aircraft and the payload”; (2) “computing system operatively coupled to the
instrumentation”; (3) instrumentation providing measurement data to the
computing system are merely obvious mechanisms that achieve the recited
solution more quickly, namely calculating a freight charge for an aircraft-
carried payload based on information regarding the payload’s aerodynamic
effect on the aircraft. That is, despite the recited components that are used to
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achieve this end, the focus of the claim is nonetheless directed to calculating
a freight charge for an aircraft-carried payload based on information
regarding the payload’s aerodynamic effect on the aircraft, albeit using
computer components to achieve that end. Cf. ChargePoint, 920 F.3d at
772–73 (holding ineligible claim reciting a network-controlled charge
transfer system for electric vehicles comprising, among other things, a
communication device configured to connect a controller to a mobile
wireless communication device for communication between the electric
vehicle operator and the controller); see also id. at 772 (noting that the lack
of an indication that (1) the disclosed invention was intended to improve the
recited components, including the communications devices, or (2) that the
inventors viewed the combination of those components as their invention).
Leaving aside the fact that satisfying the machine-or-transformation
test is not dispositive to eligibility, see Bilski, 561 U.S. at 604, that test is
nevertheless not satisfied here in any event. Therefore, the recited additional
elements, namely the recited (1) “instrumentation operatively coupled to at
least one the aircraft and the payload”; (2) “computing system operatively
coupled to the instrumentation”; and (3) the instrumentation providing
measurement data to the computing system do not integrate the exception
into a practical application. See MPEP §§ 2106.04(d)(I); 2106.05(b), (c)).
That the claimed invention determines freight charges for an
unmanned aircraft system, without more, does not integrate the abstract idea
into a practical application, for merely generally linking the use of an
abstract idea to a particular technological environment or field of use does
not render the claimed invention any less abstract. See Affinity Labs of
Texas, LLC v. DirectTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016); accord
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Flook, 437 U.S. at 584, 588–90, 596–97 (holding ineligible method for
updating an alarm limit on a process variable, despite the process involving
the catalytic chemical conversion of hydrocarbons); see also MPEP §§
2106.04(d)(I); 2106.05(h).
Furthermore, despite Appellant’s arguments to the contrary (Reply Br.
17–19), providing measurement data to the computing system by the
instrumentation is insignificant pre-solution activity that merely gathers data
and, therefore, does not integrate the exception into a practical application
for that additional reason. See Bilski, 545 F.3d at 963 (characterizing data
gathering steps as insignificant extra-solution activity); see also
CyberSource, 654 F.3d at 1371–72 (noting that even if some physical steps
are required to obtain information from a database (e.g., entering a query via
a keyboard, clicking a mouse), such data-gathering steps cannot alone confer
patentability); accord MPEP §§ 2106.05; 2106.05(g).
To the extent that Appellant contends that because the recited
instrumentation provides measurement data to the computing system, that
somehow confers eligibility by tying the claimed invention to a particular
machine or that this data is gathered in an unconventional way (see Appeal
Br. 22; Reply Br. 8–11), we disagree. We reach this conclusion noting the
term “instrumentation” is not only claimed at a high level of generality, but
also described at a high level of generality in the Specification. First, apart
from indicating that the instrumentation is operatively coupled to (1) at least
one of the aircraft and payload, and (2) the computing system, and the
instrumentation provides measurement data to the computing system, the
claim does not specify what exactly this instrumentation is. Rather, the
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claim merely recites, quite broadly, the term “instrumentation” with no
further structural detail.
The Specification is similarly silent regarding the details of this
instrumentation. For example, paragraph 102 notes that “the system may
comprise a monitoring system (e.g. with sensors, detectors, monitors,
systems, devices, instrumentation, receivers, transceivers, etc.) in association
with UAV/craft carrying payload” (emphasis added). Appellant’s Figure 28
shows a similar list of examples that include instrumentation as part of a
monitoring system. Although this usage of the term “instrumentation”
suggests its distinction from the other parenthetical examples, such as
sensors, detectors, etc., the Specification does not specify or explain what
this instrumentation is. But see Spec. ¶ 110 (referring to
“instrumentation/sensors”).
The Specification’s paragraphs 139 and 160 also refer to
instrumentation, but here again, this disclosure does not specify what the
instrumentation is exactly, but rather what it is coupled to and its data
providing function.
Given this broad and unspecific description of the recited
instrumentation, we, therefore, construe the term with its plain meaning.
The term “instrumentation” is defined in an aviation context as “the
installation or use of instruments on a flight vehicle,” or alternatively, “the
assemblage of instruments on a given flight vehicle.” ACADEMIC PRESS
DICTIONARY OF SCIENCE & TECHNOLOGY 1118 (Christopher Morris ed.,
1992) (“Academic Press Dictionary”). The term “instrument” is defined in
an aviation context as “a device designed to measure and usually record the
condition of a flight vehicle’s engines, indicators, or navigational
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equipment,” or alternatively, “any of certain related devices, especially when
associated with navigation, such as a compass or automatic pilot.” Id. 1117.
This plain meaning at least suggests that instrumentation is
operatively coupled to at least the aircraft as claimed, particularly since
instrumentation is the installation, use, or assemblage of instruments on a
flight vehicle as noted above. Moreover, because instruments measure and
usually record the condition of various devices on a flight vehicle, and can
also be related devices, including those associated with navigation and
automatic pilot functionality, this plain meaning also suggests the ability of
instrumentation to provide measurement data to devices associated with
automatically controlling various aircraft functions.
Appellant’s contention that the Examiner allegedly ignored the recited
instrumentation (Reply Br. 11–12) is unavailing. On page 6 of the Answer,
the Examiner distinguishes the limitations that recite an abstract idea (shown
in italics) from additional elements beyond the abstract idea that are not
italicized. Notably, the latter additional elements include the
instrumentation and computing system. See Ans. 6 (noting that the
instrumentation and computing system are computer elements used as a tool
to perform the recited abstract idea).
Appellant’s reliance on the non-precedential Board decisions, Ex
parte Fanaru (Appeal Br. 11, 15; Reply Br. 14–15) and Ex parte Rockwell
(Appeal Br. 20–22; Reply Br. 19) is likewise unavailing. Not only do the
facts in those cases differ from those at issue here, as non-precedential
decisions, they are not binding on this panel in any event. See PTAB
Standard Operating Procedure 2 (Rev. 10) § I(B),
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https://www.uspto.gov/sites/default/files/documents/SOP2%20R10%20FIN
AL.pdf.
Appellant’s contentions that Ex parte Fanaru and Ex parte Rockwell
are allegedly “binding precedent” in Heading 2 on pages 11 and 20 of the
Appeal Brief are incorrect, for these cases have not been so designated. See
Alphabetical Listing of Precedential Decisions, USPTO,
https://www.uspto.gov/patents-application-process/appealing-patent-
decisions/decisions-and-opinions/precedential#heading-9. Nor have these
cases been designated as informative. See Alphabetical Listing of
Informative Decisions, USPTO, https://www.uspto.gov/patents-application-
process/appealing-patent-decisions/decisions-and-opinions/informative-
opinions-0#heading-7.
On this record, then, the claimed invention does not recite additional
elements that (1) improve a computer itself; (2) improve another technology
or technical field; (3) implement the abstract idea in conjunction with a
particular machine or manufacture that is integral to the claim; (4) transform
or reduce a particular article to a different state or thing; or (5) apply or use
the abstract idea in some other meaningful way beyond generally linking the
abstract idea’s use to a particular technological environment, such that the
claim as a whole is more than a drafting effort designed to monopolize the
exception. See MPEP §§ 2106.04(d)(I); 2106.05(a)–(c), (e). In short, the
claim’s additional elements do not integrate the abstract idea into a practical
application when reading claim 1 as a whole.
In conclusion, although the recited functions may be beneficial by
calculating a freight charge for an aircraft-carried payload based on
information regarding the payload’s aerodynamic effect on the aircraft, a
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claim for a useful or beneficial abstract idea is still an abstract idea. See
Ariosa, 788 F.3d at 1379–80.
We, therefore, agree with the Examiner that claim 1 is directed to an
abstract idea.

Claims 1–4, 12–15, 32, 61, 62, 66, 86, 88–90, and 460: Alice/Mayo Step
Two

Turning to Alice/Mayo step two, claim 1’s additional recited elements,
namely the recited (1) “instrumentation operatively coupled to at least one
the aircraft and the payload”; (2) “computing system operatively coupled to
the instrumentation”; and (3) the instrumentation providing measurement
data to the computing system—considered individually and as an ordered
combination—do not provide an inventive concept that amounts to
significantly more than the abstract idea when reading claim 1 as a whole.
See Alice, 573 U.S. at 221; see also MPEP § 2106.05. As noted above, the
claimed invention merely uses generic computing components to implement
the recited abstract idea.
To the extent Appellant contends that the recited determined
aerodynamic profile adds significantly more than the abstract idea to provide
an inventive concept under Alice/Mayo step two (see Reply Br. 11–12), this
limitations is not an additional element beyond the abstract idea, but rather
recites an abstract idea as noted previously. See BSG Tech LLC v
Buyseasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (explaining that the
Supreme Court in Alice “only assessed whether the claim limitations other
than the invention’s use of the ineligible concept to which it was directed
were well-understood, routine and conventional”) (emphasis added); see
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also MPEP §§ 2106.05 (instructing that additional recited elements should
be evaluated in Alice/Mayo step two to determine whether they (1) add
specific limitations that are not well-understood, routine, and conventional in
the field, or (2) simply append well-understood, routine, and conventional
activities previously known to the industry); 2106.05(d).
Rather, the claimed (1) “instrumentation operatively coupled to at
least one the aircraft and the payload”; (2) “computing system operatively
coupled to the instrumentation”; and (3) the instrumentation providing
measurement data to the computing system are the additional recited
elements whose generic computing functionality is well-understood, routine,
and conventional. See Academic Press Dictionary 1117–18; see also In re
Salwan, 681 F. App’x 938, 941 (Fed. Cir. 2017) (non-precedential) (“Given
that the claims are directed to well-known business practices, the claimed
elements of a generic ‘network,’ ‘computer program,’ ‘central server,’
‘device,’ and ‘server for processing and transferring’ are simply not enough
to transform the abstract idea into a patent-eligible invention.”); Automated
Tracking Solutions, LLC v. Coca-Cola Co., 723 F. App’x 989, 995 (Fed. Cir.
2018) (non-precedential) (noting that the recited scanner, transponder, and
computer were conventional components that did not provide an inventive
concept to render the claimed invention eligible); Vehicle Intelligence &
Safety LLC v. Mercedes-Benz USA, LLC, 635 F. App’x 914, 919 (Fed. Cir.
2015) (non-precedential) (“Merely stating that the methods at issue are
performed on already existing vehicle equipment, without more, does not
save the disputed claims from abstraction.”); accord Spec. ¶ 304 (noting that
the disclosed invention can comprise conventional technology including
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aircraft components, monitoring/sensors, data storage and transmission,
systems/software, etc.); Ans. 10–11 (citing Spec. ¶ 102).
We reach a similar conclusion regarding the recited insignificant
extra-solution activity, namely providing measurement data to the
computing system by the instrumentation. That the instrumentation provides
measurement data to the computing system does not mean that this data
gathering function is performed in an unconventional way to add
significantly more than the abstract idea to provide an inventive concept
under Alice/Mayo step two. See MPEP §§ 2106.05; 2106.05(g). Given this
limitation’s high level of generality, the recited extra-solution activity does
not add significantly more than the abstract idea to provide an inventive
concept under Alice/Mayo step two. To the extent Appellant contends
otherwise (see Reply Br. 11–12), we disagree.
In conclusion, the additional recited elements—considered
individually and as an ordered combination—do not add significantly more
than the abstract idea to provide an inventive concept under Alice/Mayo step
two when reading claim 1 as a whole. See Alice, 573 U.S. at 221; see also
MPEP § 2106.05.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2–4, 12–15, 32, 61, 62, 66, 86, 88–90, and 460 not
argued separately with particularity.8

8 Although Appellant nominally argues claim 460 separately on pages 23
and 24 of the Appeal Brief, these arguments are similar to those made for
claim 1. We, therefore, group claim 460 accordingly.
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Claims 222 and 347
We also sustain the Examiner’s rejection of independent method
claims 222 and 347. Because these claims recite limitations commensurate
with those in independent apparatus claims 1 and 460, and Appellant’s
arguments regarding claims 222 and 347 are similar to those made for
claims 1 and 460 (see Appeal Br. 15–19, 23–24), we sustain the Examiner’s
ineligibility rejection of claims 222 and 347 for similar reasons.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)
/Basis
Affirmed Reversed
1–4, 12–
15, 32,
61, 62,
66, 86,
88–90,
222, 347,
460
101 Ineligibility 1–4, 12–15,
32, 61, 62,
66, 86, 88–
90, 222, 347,
460

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).

AFFIRMED