Ex Parte Berge

Patent Trial and Appeal Board

Sep 5, 2017

13744918 (P.T.A.B. Sep. 5, 2017)

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.
13/744,918 01/18/2013 Matthew E. Berge B86918 1150US.1 (0032.7) 4002
128836 7590 09/07/2017
Womble Carlyle Sandridge & Rice LLP
Attn: IP Docketing
P.O. Box 7037
Atlanta, GA 30357-0037
EXAMINER
GREENE, DANIEL LAWSON
ART UNIT PAPER NUMBER
3667
NOTIFICATION DATE DELIVERY MODE
09/07/2017 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):
ipdocketing @ wcsr. com
patentadmin @ B oeing. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW E. BERGE
Appeal 2015-008189
Application 13/744,9181
Technology Center 3600
Before PHILIP J. HOFFMANN, AMEE A. SHAH, and
MATTHEW S. MEYERS, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the final rejection of
claims 1—6, 8, 10—17, 19, 21—28, 30, 32, and 33. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
According to Appellant, the invention “relates generally to air traffic
management and, in particular, to air traffic planning including sequencing,
scheduling and/or route assignment.” Spec. 1,11. 9—11. Claims 1, 12,
1 According to Appellant, “[t]he real party in interest... is The Boeing
Company.” Appeal Br. 1.
Appeal 2015-008189
Application 13/744,918
and 23 are the independent claims on appeal. Below, we reproduce claim 1
as illustrative of the appealed claims.
1. An apparatus comprising a processor and a memory
storing computer-readable program code portions that, in
response to execution by the processor, cause the apparatus to at
least:
specify or receive specification of an arrival network for a
center airspace having a terminal radar approach control
(TRACON) airspace therein, the arrival network being
composed of nodes interconnected by legs, each leg representing
a segment traversed by an aircraft from an upstream one of the
nodes to a downstream one of the nodes, a plurality of the nodes
being designated as scheduling points where one or more
constraints are enforceable, the one or more constraints including
a temporal separation constraint between consecutive aircraft at
each scheduling point;
specify for each of a plurality of aircraft, a route set
including a plurality of allowed routes each of which includes a
plurality of legs between an arbitrary N scheduling points of the
arrival network; and
determine a plan for the plurality of aircraft within either
or both the center airspace or TRACON airspace, the plan
including at least a sequence of the plurality of aircraft and an
assigned route for each of the aircraft, the plan being determined
based on the route set for each of the plurality of aircraft, and in
accordance with the arrival network, and the scheduling points
and constraints thereof, the assigned route of each aircraft being
one of the allowed routes in the route set of the respective
aircraft,
wherein the apparatus being caused to determine the plan
includes being caused to iteratively construct partial sequences
up to the sequence of the plurality of aircraft, the partial
sequences being constructed from alternative sequences
subjected to a bounding argument in accordance with a branch-
and-bound technique.
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Application 13/744,918
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
I. claims 1—6, 8, 10-17, 19, 21—28, 30, 32, and 33 under
35 U.S.C. § 101 as directed to non-statutory subject matter; and
II. claims 1—6, 8, 10-17, 19, 21—28, 30, 32, and 33 under
35 U.S.C. § 103(a) as unpatentable over Erzberger
(US 6,314,362 Bl, iss. Nov. 6, 2001) and Poore
(US 2002/0008657 Al, pub. Jan. 24, 2002).
ANALYSIS
Rejection I
Initially, we note that Appellant argues the section 101 rejection of
claims 1—6, 8, 10-17, 19, 21—28, 30, 32, and 33 under a single heading. See
Appeal Br. 5. Thus, we choose claim 12 as representative of all of the
claims, and the remaining claims stand or fall with claim 16. See 37 C.F.R.
§ 41.37(c)(1).
Appellant first argues that the Examiner’s statements supporting the
rejection “are[,j in fact[,] nothing more than broad conclusory statements,
provided without any explanation to support the conclusion that the claims
are non-statutory, and[,] therefore cannot form the basis of a proper
rejection.” Appeal Br. 6 (citations omitted). We are not persuaded by this
argument, however.
All that is required to meet the notice requirement of 35 U.S.C. § 132
is that the Examiner set forth the statutory basis of the rejection, and any
references on which the Examiner relies, in a sufficiently articulate and
informative manner. See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011);
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Application 13/744,918
see also Chester v. Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990)
(Section 132 “is violated when a rejection is so uninformative that it
prevents the applicant from recognizing and seeking to counter the grounds
for rejection.”). In this case, the Examiner indicates that “[cjlaims 1 [—]6, 8,
10[—] 17, 19, 21 [—]28, 30, 32 and 33 are rejected under 35 U.S.C. [§] 101,”
based on the Examiner’s determinations that “[t]he claim(s) is/are directed to
[an] abstract idea,” and that “the claim(s) as a whole, considering all claim
elements both individually and in combination, do not amount to
significantly more than an abstract idea.” Final Action 4; see also id. at 4—5;
see also Answer 3—5. The Examiner then provides reasoning supporting
these determinations. See, e.g., Final Action 4—5; see also, e.g., Answer 3—
5. Therefore, we determine that the Examiner’s rejection meets the
requirements of Section 132.
We determine whether a claim is directed to patent-eligible subject
matter based on the Supreme Court’s framework, as articulated in Alice
Corp. v. CLSBankInt’l, 134 S.Ct. 2347 (2014), which follows the two-part
test set forth in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132
S.Ct. 1289, 1293 (2012). That is, a claim fails to recite patent-eligible
subject matter if, in accordance with the first part of the Alice test, the claim
is directed to an abstract idea, and if, in accordance with the second part of
the test, the claim lacks any further claim limitations that, when
“considered] . . . both individually and ‘as an ordered combination[]’ . . .
‘transform the nature of the claim’ into a patent-eligible application.” Alice,
134 S.Ct. at 2355 (quoting Mayo, 132 S.Ct. at 1297).
With respect to the first part of the Alice test, the Court acknowledged
in Mayo that “all inventions at some level embody, use, reflect, rest upon, or
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Application 13/744,918
apply laws of nature, natural phenomena, or abstract ideas.” Mayo, 132
S.Ct. at 1293. We, therefore, look to whether the claims either focus on a
specific means or method that improves the relevant technology, or are
instead directed to a result or effect that itself is the abstract idea, and the
claims merely invoke generic processes and machinery. See Enflsh, LLC v.
Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016).
In this case, Appellant does not argue clearly whether Appellant
considers that the claims are not abstract, or whether the claims, although
abstract, include limitations that transform the claims into patent-eligible
applications. See Appeal Br. 6—8; see also Reply Br. 1^4. Regardless, after
considering Appellant’s argument that the claims are patent-eligible because
“the claims are directed to a patent-eligible practical application of the
algorithm to improve upon an existing technological process for air traffic
management, and more particularly air traffic planning” (Appeal Br. 6), we
agree with the Examiner that the claims are directed to non-statutory subject
matter.
The Examiner finds that the claims recite an abstract idea because the
claimed steps “can be performed mentally with paper and pencil as was
conventional or in a computer.” Answer 3. Based on our review of claim
12, we agree with the Examiner that the claim involves nothing more than
accessing and evaluating data; all steps that may be performed manually.
See CyberSource, 654 F.3d 1366, at 1373 (Fed.Cir. 2011) (“A method that
can be performed by human thought alone is merely an abstract idea and is
not patent-eligible under § 101.”). We also determine that the claims,
including claim 12, are similar to the claims that our reviewing court has
found patent ineligible in Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
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Application 13/744,918
1350, 1353—54 (Fed.Cir. 2016) (collecting information and “analyzing
information by steps people go through in their minds, or by mathematical
algorithms, without more, [are] essentially mental processes within the
abstract-idea category.”)
With respect to the second part of the Alice test, we determine that the
claims lacks any further claim limitations that, when considered both
individually and as an ordered combination, transform the nature of the
claim into a patent-eligible application. See Alice, 134 S.Ct. at 2355. We
agree with the Examiner that, to the extent claim 12 requires any hardware,
any such hardware components “are generic computer components claimed
to perform their basic functions of storing, retrieving and processing data.”
Answer 4. Conversely, Appellant’s arguments (see Appeal Br. 7) do not
persuade us that the claims recite limitations that transform the claim as
required by the Alice test.
Thus, for the above reasons, Appellant does not persuade us of
Examiner error. Therefore, we sustain the Examiner’s rejection of claims 1—
6, 8, 10-17, 19, 21-28, 30, 32, and 33 under 35 U.S.C. § 101.
Rejection II
Initially, we note that Appellant argues the obviousness rejection of
claims 1—6, 8, 10-17, 19, 21—28, 30, 32, and 33 under a single heading. See,
e.g., Appeal Br. 8. Thus, we choose claim 1 as representative of all of the
claims, and the remaining claims stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1).
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Application 13/744,918
As set forth above, independent claim 1 recites, among other
recitations,
causing] the apparatus to at least. . .
specify or receive specification of an arrival network for a
center airspace having a terminal radar approach control
(TRACON) airspace therein, the arrival network being
composed of nodes interconnected by legs, each leg representing
a segment traversed by an aircraft from an upstream one of the
nodes to a downstream one of the nodes, a plurality of the nodes
being designated as scheduling points where one or more
constraints are enforceable, the one or more constraints
including a temporal separation constraint between consecutive
aircraft at each scheduling point.
Appeal Br., Claims App. (emphasis added). Appellant argues that the
rejection is in error because the Examiner errs in finding that Erzberger
teaches a temporal separation constraint. See Appeal Br. 9; see also Reply
Br. 5—6. Based on our review, we determine that the Examiner does not
support adequately the finding that Erzberger teaches a temporal constraint.
More specifically, we agree with Appellant, with reference to page 6 of the
Examiner’s Answer, which discusses Erzberger’s column 8, lines 22—35,
and column 12, lines 27-45, that “[t]he Examiner correlates lateral and
vertical separation in Erzberger with temporal separation in the claimed
invention, but clearly lateral and vertical separation between aircraft is not
the same as the recited temporal separation constraint, which is a constraint
of time between consecutive aircraft at each scheduling point.” Reply Br. 5.
Thus, based on the foregoing, we do not sustain the Examiner’s
obviousness rejection of claim 1. Inasmuch as independent claims 12 and 23
recite similar recitations, and are rejected for the same reasons as claim 1,
we also do not sustain the Examiner’s obviousness rejection of claims 12
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Application 13/744,918
and 23. Further, we do not sustain the obviousness rejection of any of the
remaining claims, because each of the remaining claims depends from one
of these independent claims, and because the Examiner does not rely on any
other reference to remedy the above deficiency in the independent claims’
rejection.
DECISION
We AFFIRM the Examiner’s subject matter rejection of claims 1—6, 8,
10-17, 19, 21-28, 30, 32, and 33.
We REVERSE the Examiner’s obviousness rejection of claims 1—6, 8,
10-17, 19, 21-28, 30, 32, and 33.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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