Ex Parte Dabak et al

Patent Trial and Appeal Board

Nov 13, 2018

14156388 (P.T.A.B. Nov. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/156,388 01/15/2014
23494 7590 11/15/2018
TEXAS INSTRUMENTS IN CORPORA TED
PO BOX 655474, MIS 3999
DALLAS, TX 75265
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Anand Dabak
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
TI-73669 6478
EXAMINER
MARINI, MATTHEW G
ART UNIT PAPER NUMBER
2854
NOTIFICATION DATE DELIVERY MODE
11/15/2018 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):
uspto@ti.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte ANAND DABAKand VENKATA RAMANAN 1
Appeal2018-003062
Application 14/156,388
Technology Center 2800
Before JAMES C. HOUSEL, DONNA M. PRAISS, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
KENNEDY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 5, 8, 9, 14, and 17. We have jurisdiction under
35 U.S.C. § 6(b). We AFFIRM.
BACKGROUND
The subject matter on appeal relates to methods of measuring the
velocity of a fluid. E.g., Spec. ,r 2; Claim 5. Claim 5 is reproduced below
from page 15 (Claims Appendix) of the Appeal Brief:
1 The Appellant is the Applicant, Texas Instruments Incorporated, which is
also identified as the real party in interest. See Br. 1.
Appeal2018-003062
Application 14/156,388
5. A method of measuring a velocity of a fluid or gas, comprising:
receiving a first ultrasonic signal transmitted through the fluid
or gas;
receiving a second ultrasonic signal transmitted through the
fluid or gas;
sampling the first ultrasonic signal to produce a first sampled
ultrasonic signal;
sampling the second ultrasonic signal to produce a second
sampled ultrasonic signal;
selecting points from the first and second sampled ultrasonic
signals having a value greater than a first threshold; and
calculating the time difference in response to the selected
points;
determining the velocity of the fluid or gas based on the time
difference;
wherein the step of selecting points comprises selecting a point
by linear interpolation of the zero-crossing of a sine wave.
REJECTIONS ON APPEAL
The claims stand rejected as follows:
1. Claims 5, 8, 9, 14, and 17 under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter;
2. Claims 5 and 14 under 35 U.S.C. § 103 as unpatentable over
Yejun2 (CN 101922954 A, dated Dec. 22, 2010) and Jacobson (US
4,787,252, issued Nov. 29, 1988); and
3. Claims 8, 9, and 17 under 35 U.S.C. § 103 as unpatentable over
Yejun and Edel (US 8,295,025 B2, issued Oct. 23, 2012).
2 Like the Examiner and the Appellant, we rely on the machine translation of
Y ejun in the record.
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ANALYSIS
After review of the cited evidence in the appeal record and the
opposing positions of the Appellant and the Examiner, we determine that the
Appellant has not identified reversible error in the Examiner's rejections.
Accordingly, we affirm the rejections for reasons set forth below, in the
Non-Final Action dated Mar. 14, 2017 ("Act."), and in the Examiner's
Answer. See generally Act. 2-17; Ans. 2-9.
Rejection 1
The Appellant argues the claims subject to Rejection 1 as a group.
We select claim 5 as representative of the claims subject to Rejection 1, and
the remaining claims subject to Rejection 1 will stand or fall with claim 5.
See 37 C.F.R. § 4I.37(c)(l)(iv).
Determining whether a claimed invention is directed to patent-eligible
subject matter is a two-step process that requires (1) evaluating whether the
claim is directed toward a patent-ineligible concept, i.e., a law of nature,
natural phenomenon, or abstract idea; and, if so, (2) determining whether the
claim's elements, considered both individually and as an ordered
combination, transform the nature of the claim into a patent-eligible
application. See Alice Corp. v. CLS Bank Int 'l, 573 U.S. 208, 134 S. Ct.
2347, 2354--55 (2014).
The Examiner determines that claim 5 is related "to a generic
computer function to obtain data and perform simple mathematical
operations." Act. 2-3. The Examiner explains that courts have found
"concepts relating to performing mathematical calculations abstract," and
that "[t ]he use of a computer to collect data, similar to the claimed sampling
and selecting of points, is one of the most basic functions of a computer."
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Id. at 3. The Examiner states that use of a computer to calculate a difference
"is a computer function considered to be 'well understood, routine, or
conventional activities' previously known in the industry." Id.
The Examiner also determines that "[t]he claim does not include
additional elements that are sufficient to amount to significantly more than
the judicial exception because the additional elements when considered both
individually and as an ordered combination do not amount to significantly
more than the abstract idea," and that "[t]here is no indication that the
combination of elements improves the functioning of a computer for
performing these steps or improves any other technology." Id. at 3--4.
In view of that analysis, the Examiner concludes that the subject
matter of claim 5 is patent ineligible.
In the Appeal Brief, the Appellant lists a variety of concepts that have
been identified by the courts as abstract, including mathematical
relationships/formulas, and then asserts, with no elaboration, that the claims
are not directed to those abstract ideas. E.g., Br. 5 ("Further, claims 5, 8, 9,
14 and 17 are not directed to mathematical relationships/formulas.").
A naked assertion that claim 5 is "not directed to mathematical
relationships/formulas" is not persuasive because it does not address the
Examiner's findings and conclusions. See In re Jung, 637 F.3d 1356, 1365
(Fed. Cir. 2011) ("[I]t has long been the Board's practice to require an
applicant to identify the alleged error in the examiner's rejections .... "); cf
In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (arguments consisting of
"naked assertion[ s ]" generally not persuasive). In that regard, we observe
that the Appellant does not meaningfully dispute the Examiner's
characterization of claim 5 as being directed to collecting data and then
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performing mathematical operations on the collected data to determine the
velocity of a fluid. See Br. 5---6. The Appellant's limited argument does not
persuade us of error in the Examiner's determination that claim 5 is directed
to an abstract idea.
The Appellant also argues that claim 5 recites sampling ultrasonic
signals, and that "[a] computer does not measure the ultrasonic signals
transmitted through the fluid or gas." Id. at 6. Claim 5, however, is directed
to a method and does not recite a computer, a sensor, or a transducer for
receiving or sampling ultrasonic signals. And, although the Appellant
argues that the recited functions "add significantly more than mere computer
implementation," and that the recited functions "improve the functioning of
the claimed systems and methods themselves," the Appellant's conclusory
assertions do not persuasively identify any alleged improvement to any
system or method. See id. at 6-7.
Claim 5 is similar in nature to the claims at issue in Parker v. Flook,
437 U.S. 584 (1978), which were held to be patent ineligible. Those claims
required (1) collecting data (i.e., "[d]etermining the present value of [a]
process variable" such as temperature, presumably monitored by a sensor),
(2) subjecting the data to a mathematical operation to "[d]etermin[e] a new
alarm base," and (3) on the basis of the result of that operation, making a
determination through use of an additional mathematical operation
("[d]etermining an updated alarm limit which is defined as B1 + K"). See id.
at 585, 597. Claim 5 similarly requires (1) collecting data ("selecting
points" from sampled ultrasonic signals), (2) subjecting the data to a
mathematical operation ("calculating the time difference in response to the
selected points"), and (3) on the basis of the result of that operation, making
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Application 14/156,388
a determination through use of an additional mathematical operation
("determining the velocity of the fluid or gas based on the time difference,"
see Spec. ,r 5 (providing mathematical formula for determining velocity)).
Finally, we observe that, in the Answer, the Examiner substantially
elaborates on the conclusion that the subject matter of claim 5 is patent
ineligible. See Ans. 2---6. For example, the Examiner (1) finds that "[t]he
steps of selecting points, calculating the time difference between those
points and determining the velocity of the fluid or gas are mathematical
operations which are capable of being performed by a human using a pen
and paper," id. at 5 (citing cases), and (2) cites evidence that certain aspects
of the claim are routine and conventional, id. at 4. The Appellant does not
file a Reply Brief to contest the Examiner's additional analysis in support of
the rejection, and we discern no basis to reject the additional analysis. On
this record, we are not persuaded of reversible error in the Examiner's
determination that claim 5 is directed to patent-ineligible subject matter.
Rejection 2
The Appellant argues the claims subject to Rejection 2 as a group.
We select claim 5 as representative of the claims subject to Rejection 2, and
claim 14 will stand or fall with claim 5. See 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds that Y ejun teaches each element of claim 5 except
that Y ejun "remains silent regarding the step of selecting points comprises
selecting a point by linear interpolation of the zero-crossing of a sine wave."
Act. 9. The Examiner finds that Jacobson "teaches a similar flow meter
having a processing step for selecting points ... using a line[a]r
interpolation of the zero-crossing of a sine wave." Id. The Examiner
concludes that it would have been obvious to include the linear interpolation
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of Jacobson in the method of Y ejun because Jacobson teaches that "the
linear interpolation increases the resolution of the calculations by two orders
of magnitude, thereby giving a more accurate calculation." Id. at 10.
In the Appeal Brief, the Appellant provides five pages of case law
summary with no application of that law to the facts of this case, and then,
with no elaboration, states that "[i]t appears that the Examiner's proposed
rejection is based solely on hindsight derived from Appellant's
specification." Br. 8-13.
That argument is not persuasive because it does not meaningfully
address or show error in the Examiner's findings and conclusions. See Jung,
637 F.3d at 1365. Specifically, the Examiner finds that the combined prior
art teaches each element of claim 5, and that a person of ordinary skill in the
art would have been motivated to combine the references to obtain a more
accurate calculation using Jacobson's linear interpolation method. See
Act. 9-10. Thus, and particularly in view of the lack of any meaningful
challenge to those findings, we are not persuaded that the rejection is
impermissibly based on hindsight. Rather, it appears to be based on the
plain teachings and suggestions of the cited references. We are not
persuaded of reversible error in the rejection.
Rejection 3
The Appellant argues the claims subject to Rejection 3 as a group.
We select claim 8 as representative of the claims subject to Rejection 3, and
claims 9 and 17 will stand or fall with claim 8. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
The Examiner finds that Y ejun teaches each element of claim 8 except
that Y ejun "remains silent regarding each of the first and second ultrasonic
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signals are transmitted in response to an excitation frequency." Act. 11-12.
The Examiner finds that Edel teaches "similar ultrasonic sensors as taught
by Y ejun having a controller and supporting control logic for controlling
said sensors through a controllable excitation frequency." Id. at 12. The
Examiner concludes that it would have been obvious "to modify the first and
second signals to be controllable according to the methods taught by Edel"
because Edel teaches "the controllability allows for an optimum frequency
to be continually controlled for optimum performance, thereby modifying
Yejun to be controlled for optimum performance during measurements." Id.
The Appellant argues that the Examiner's rejection should be reversed
because it "fails to provide any explanation as to how the controller and
supporting control logic identified in Y ejun might be modified to provide
control of an excitation frequency," and "[t ]he circuits of Yejun and Edel
have different modes of operation and it is, thus, not clear how Y ejun would
be modified based on Edel as alleged in the Office Action." Br. 13. The
Appellant asks, "[f]or example, what circuitry of Edel would be added to
Yejun to include an excitation frequency?" Id.
In the Answer, the Examiner provides further discussion of the stated
rejection, and finds that " [ o ]ne of ordinary skill in the art of ultrasonic
transducers, in light of Edel, would find it obvious to incorporate the
circuitry and control logic of Edel into Y ejun ... such that the frequency of
the transducers of Y ejun ... are controlled optimally for optimum
performance, as supported by Edel." Ans. 8. The Appellant does not file a
Reply Brief to contest those findings.
Particularly in view of the Examiner's finding that any required
circuitry and logic modification would have been within the level of
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ordinary skill in the art, and the Appellant's failure to contest that finding or
to identify any particular aspect of the proposed combination that would not
have been within the level of ordinary skill in the art, we are not persuaded
by the Appellant's argument that the rejection is inadequate because it does
not precisely specify, e.g., how to modify the circuitry ofYejun. See Ans. 8
("The examiner would also like to point out that the claims are silent with
regard[ s] to how or what are controlling these excitation frequencies.").
On this record, we are not persuaded of reversible error in the
Examiner's rejection.
CONCLUSION
We AFFIRM the Examiner's rejections of claims 5, 8, 9, 14, and 17.
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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