Ex Parte Duval et al

Patent Trials and Appeals Board

May 15, 2019

13547205 - (D) (P.T.A.B. May. 15, 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.
13/547,205 07/12/2012 Laurent Duval 20362-134711 1198
42798 7590 05/16/2019
FITCH, EVEN, TAB IN & FLANNERY, LLP
120 South LaSalle Street, Suite 2100
Chicago, IL 60603-3406
EXAMINER
DALLO, JOSEPH J
ART UNIT PAPER NUMBER
3747
MAIL DATE DELIVERY MODE
05/16/2019 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 LAURENT DUVAL, AURELIEN SCHUTZ,
and JEAN-MARC ZACCARDI
Appeal 2018-008248
Application 13/547,2051
Technology Center 3700
Before MICHAEL P. TIERNEY, Vice Chief Administrative Patent Judge,
and ALLEN R. MacDONALD and MICHAEL T. CYGAN, Administrative
Patent Judges.
CYGAN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 8—49. See App. Br. 7. Claims 1-7 were cancelled
in a preliminary amendment. Appellants’ Remarks 9 (July 12, 2012). We
have jurisdiction under 35 U.S.C. § 6(b).
We reverse the rejection under 35 U.S.C. § 101.
1 According to Appellants, the real party in interest is IFP Energies
Nouvelles. App. Br. 3.
Appeal 2018-008248
Application 13/547,205
Disclosed Invention and Exemplary Claims
The disclosed invention relates to the control of the combustion phase
of an internal-combustion engine. Spec.]} 1. Specifically, the disclosed
invention relates to a method for detecting an abnormal combustion so as to
take steps during the detection cycle to prevent abnormal combustion in
subsequent engine operation. Spec. ^ 20. The disclosed method entails
selecting combustion indicators that are determined from at least one
detected signal representative of the state of the combustion in the engine.
Spec. ^ 21.
The combustion indicators are used to define a surface in a
multidimensional space that encloses points representing normal combustion
and excludes points representing abnormal combustion. Abstract.
Combustion signals are then detected in real-time, their position in the
multidimensional space is defined, and the combustion is classified as either
abnormal or normal depending on whether the position of the real-time
signal is enclosed by the surface representing normal combustion. Spec.
20. For signals classified as abnormal, the distance of a real-time
combustion point from the surface is related to the severity of the abnormal
combustion. Id. When the combustion is detected to be abnormal, the
progress of the combustion is controlled as a function of the measured
abnormality. Spec. ^ 21; Fig. 2.
Independent claim 8 and dependent claim 9, reproduced below with
modified formatting, exemplify the claimed invention:
8. A method for controlling combustion of a spark-ignition
internal-combustion engine, wherein at least one signal
representative of a state of the combustion is recorded by at
least one detector in the engine, comprising:
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selecting combustion indicators that can be determined
from the at least one signal and defining a multidimensional
space in which each dimension corresponds to one of the
indicators and any combustion can be represented by a point in
the space;
defining in the multidimensional space a closed surface
surrounding the points corresponding to normal combustions
and which does not surround points corresponding to abnormal
combustions; and
for each combustion of an engine cycle representing the
combustion of the cycle by a point in the multidimensional
space, determining for the combustion indicators a position of
the point with respect to the surface and determining therefrom
any abnormal nature of the combustion, determining a distance
between the point and the surface, and determining therefrom a
severity of the abnormal nature of the combustion, and
controlling progress of the abnormal combustion as
a function of severity of the abnormal nature of the combustion.
9. A method as claimed in claim 8, wherein:
the surface is defined by selecting an equation defining
the surface with the equation comprising at least one parameter,
carrying out a set of combustions wherein the normal
combustions and the abnormal combustions are known and
representing the set of combustions in the multidimensional
space to form a cluster of points,
determining, by a principal component analysis, principal
directions of the cluster of points and determining a dispersion
of the points in each principal direction, and
modifying the at least one parameter so that the extension
of the surface in each principal direction is equal to the
dispersion in the principal direction.
Independent claim 49 recites a method having limitations
commensurate with independent claim 8.
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Examiner’s Rejection
The Examiner rejects claims 8^49 under 35 U.S.C. § 101 as failing to
claim eligible subject matter.
PRINCIPLES OF LAW
Patent-eligible subject matter is defined in 35 U.S.C. § 101 of the
Patent Act, which recites:
Whoever invents or discovers any new and useful process,
machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent therefor,
subject to the conditions and requirements of this title.
There is, however, an implicit, longstanding exception to patent-
eligible subject matter in 35 U.S.C. § 101: “[ljaws of nature, natural
phenomena, and abstract ideas.” Alice Corp. v. CIS Banklnt’l, 573 U.S.
208, 216 (2014). This exception precludes patenting of “the basic tools of
scientific and technological work” from which all inventions spring. Id. at
216-17. Invention or discovery under § 101 is distinguished as being the
application of such tools to an end otherwise satisfying the requirements of
the patent statutes. See Gottschalkv. Benson, 409 U.S. 63, 61 (1972).
The Supreme Court has established a framework for this eligibility
determination. Where a claim is directed towards a law of nature, natural
phenomena, or abstract idea, the elements of the claim as a whole must
ensure that the claim, in practice, amounts to significantly more than a patent
on the law of nature, natural phenomena, or abstract idea itself. Alice, 573
U.S. at 217-18. In applying this eligibility analysis, our reviewing court has
stated, “the decisional mechanism courts now apply is to examine earlier
cases in which a similar or parallel descriptive nature can be seen ... the
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classic common law methodology for creating law when a single governing
definitional context is not available.” Amdocs (Isr.) Ltd. v. Openet Telecom,
Inc., 841 F.3d 1288, 1294 (Fed. Cir. 2016) (citation omitted).
To address the growing body of precedent, the USPTO recently
published revised examination guidance on the application of § 101. 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50, 50
(Jan. 7, 2019) (hereinafter, “2019 Guidance”). The 2019 Guidance seeks to
improve the clarity of the subject matter eligibility analysis and improve
consistency of this analysis across the USPTO. Id.
Under the 2019 Guidance, we first look to whether the claim is
directed to a judicial exception because:
(1) the claim recites a law of nature, natural phenomenon, or abstract
idea; the latter of which includes certain groupings, identified as
mathematical concepts, certain methods of organizing human activity
and mental processes; and
(2) the claim as a whole fails to recite additional elements that
integrate the judicial exception into a practical application (see MPEP
§ 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, 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 2019 Guidance, passim.
ANALYSIS
We have reviewed the Examiner’s subject matter eligibility rejections
(Final Act. 2-8) in light of Appellants’ contentions that the Examiner has
erred (App. Br. 7-14). Further, we have reviewed the Examiner’s response
to Appellants’ arguments. Ans. 2-3. We agree with Appellants’ contention
that the Examiner erred in rejecting the pending claims 8^19 under 35
U.S.C. §101.
“Recites an Abstract Idea ”
The Examiner has determined that the body of claim 8 recites certain
“algorithm[ic]” limitations. Final Act 2, 6.2 The limitations identified by
the Examiner as being “algorithm[ic]” are reproduced here, with emphasis,
in the context of the entirety of claim 8:
A method for controlling combustion of a spark-ignition
internal-combustion engine, wherein at least one signal
representative of a state of the combustion is recorded by at
least one detector in the engine, comprising:
selecting combustion indicators that can be determined
from the at least one signal and defining a multidimensional
space in which each dimension corresponds to one of the
indicators and any combustion can be represented by a point in
the space;
2 The Final Action treats the “selecting combustion indicators that can be
determined from the at least one signal” limitation as either part of the
“algorithm” (Final Act. 6) or instead as “data gathering” (Final Act. 2). Our
analysis does not turn upon such a distinction.
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defining in the multidimensional space a closed surface
surrounding the points corresponding to normal combustions
and which does not surround points corresponding to abnormal
combustions; and
for each combustion of an engine cycle representing the
combustion of the cycle by a point in the multidimensional
space, determining for the combustion indicators a position of
the point with respect to the surface and determining therefrom
any abnormal nature of the combustion, determining a distance
between the point and the surface, and determining therefrom a
severity of the abnormal nature of the combustion, and
controlling progress of the abnormal combustion as a function
of severity of the abnormal nature of the combustion.
Final Act. 2, 6.
The Examiner characterizes the above-identified limitations as
“determining a distance of an abnormal combustion point with respect to a
predefined area of normal combustion points[,] which amounts to nothing
more than a mathematical relationship or an abstract idea.” Final Act. 5.
With respect to the limitations identified as reciting an abstract idea
by the Examiner, Appellants acknowledge that these “arguably recit[e]
abstractions.” App. Br. 14.
We agree that the abovementioned limitations recite an abstract idea.
The manner by which the limitations of claims 8 and 49 act to create a
boundary between normal and abnormal combustion indicators, and to
classify new data as either normal or abnormal through a spatial relationship
to the boundary, is a type of evaluation similar to those mental processes
found to be abstract by our reviewing courts. See 2019 Guidance, 84 Fed.
Reg. at 52, nn.14-15 (collecting cases).
In this determination, we are guided by prior court decisions,
including the analysis set forth in CyberSource Corp. v. Retail Decisions,
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Inc., 654 F.3d 1366, 1370-74 (Fed. Cir. 2011). In CyberSource, the Federal
Circuit reviewed a claim reciting steps of “constructing a map of credit card
numbers based upon . . . transactions [and] utilizing the map of credit card
numbers to determine if [a] credit card transaction is valid.” Id. at 1370-74.
The court found the scope of the claim to include situations involving only a
few transactions, such that the determination could be performed in the
human mind. Id. at 1372. The CyberSource court found this claim to be
“drawn to an unpatentable mental process - a subcategory of unpatentable
abstract ideas.” Id. at 1371.
Appellants’ claim 8 similarly involves constructing a map of data
points and utilizing that map to determine if further data points are normal or
abnormal. Additionally, claim 8 does not provide any particular limitation
on the manner of creating a surface in a multidimensional (e.g., more than
one dimension) space. The limitations identified as being part of the abstract
idea do not, by themselves, require any particular mathematical
computation. These limitations would be met by, for example, establishing
an abnormal/normal boundary (for example, manually plotting prior
combustion indicator data and drawing a contiguous line representing a
boundary between perceived abnormal and normal data points) and
qualitatively determining whether current data values are outside the
boundary, and if so, how far from the boundary those values are as a
measure of the severity of the abnormality. We conclude that these
limitations of claim 8 are indistinguishable from the type of evaluation found
to be a mental process in CyberSource and in other prior cases.
To the extent that the evaluation involves further characterization of
data points by determining the distance of a data point from the
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normal/abnormal boundary, Appellants have not argued, nor is there any
indication in the record, that this evaluation is of the type that cannot
practically be “performed in the human mind, or by a human using a pen and
paper.” See Spec. ^ 72; CyberSource, 654 F.3d at 1372. Thus, we see no
indication that the steps could not reasonably be performed in the human
mind, such as whether a human could make such determinations in the
context of actual engine operation. Accordingly, we determine that the
identified evaluation is a type of mental process similar to those the courts
have identified as abstract.
Although not necessary to the decision, we note that dependent claims
9—48 contain additional limitations which further limit the mental process of
claim 8. Those limitations include defining the surface by an equation
comprising at least one parameter, and determining principal directions of
the cluster of points by a principal component analysis, and modifying the at
least one parameter so that the extension of the surface in each principal
direction is equal to the dispersion in the principal direction. Claim 9. To
the extent that these steps define an equation, and operations to be taken on
at least one parameter, these limitations further reduce the mental process set
forth in claim 8 to mathematical relationships and/or calculations. Although
these limitations in the dependent claims provide further mathematical detail
to the mental evaluation of claim 8, these limitations do not distinguish the
claims from mental processes and mathematical formulas. 2019 Guidance,
84 Fed. Reg. at 52 (synthesizing those concepts found by the courts to be
directed to an abstract idea); see id. at 52 n.12 (citing Bilski v. Kappos, 561
U.S. 593, 611 (2011) (“The concept of hedging, described in claim 1 and
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reduced to a mathematical formula in claim 4, is an unpatentable abstract
idea”)).
“Directed to an Abstract Idea ”
Having found the claims to recite an abstract idea, we next determine
whether the claims are directed to that abstract idea, or whether the claim
integrates the abstract idea into a practical application of the abstract idea.
2019 Guidance, 84 Fed. Reg. at 54. We therefore start with the Examiner’s
and the Appellants’ respective characterizations of the elements additional to
the abstract idea.3
The Examiner finds claim 8 to be “mostly [an] algorithm with little
else.” Final Act. 2. The Examiner identifies the additional limitations as
“selecting combustion indicators that can be determined from the at least one
signal” and “controlling progress of the abnormal combustion as a function
of the severity of the abnormal nature of the combustion.” Id. The
Examiner also identifies “at least one detector” and “a spark-ignition
internal-combustion engine” as additional elements. Final Act. 6. The
Examiner also finds claim 8 to recite generic computer components, but to
lack recitation of a computer program controlling the abnormal combustion.
Final Act. 2—4.
Appellants assert, “processes for controlling combustion in an internal
combustion engine have always been statutory subject matter and are not in
any way a judicial exception as suggested by the Examiner.” App. Br. 12.
Appellants further assert, “the claims as a whole pertain to a statutory
3 We defer any issues of whether such elements are “well-understood,
routine, conventional” to a later step in the analysis, should the claims not be
found eligible at this step. 2019 Guidance, 84 Fed. Reg. at 55-56.
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process and the presence of a patent ineligible concept within the claims (the
multidimensional space) does not render the claims nonstatutory.” Id.
Appellants further assert, “[cjontrol of abnormal combustion is not an
abstraction and saves an engine from catastrophic destruction [in some
instances],” and that such control is a “real-world highly technological
process.” Id. at 14. Appellants contend that the Examiner’s reduction of the
claims as “mostly the algorithm with little else” is not in accord with
precedent. Id. at 10-13, citing Enflsh, LLC v. Microsoft Corp., 822 F.3d
1327 (Fed. Cir. 2016) and Thales Visionix Inc. v. United States, 850 F.3d
1343 (Fed. Cir. 2017).
We are persuaded by Appellants’ assertions that the Examiner erred in
characterizing the additional elements as being “little else.” A claim that
integrates the abstract idea into a practical application of the abstract idea
may be recognized by additional limitation(s) such that the claim as a whole
is directed to, for example, an improvement in the functioning of a computer
or another technology or technical field, a transformation of a particular
article to a different state or thing, or other such meaningful limitation. See
2019 Guidance, 84 Fed. Reg. at 55, nn.25-29 (collecting cases). We
determine that Appellants’ claims 8 and 49 meet this characterization.
Appellants’ claims set forth additional elements relating to a process
of controlling abnormal combustion, including a spark-ignition internal-
combustion engine having a detector therein providing signal(s)
representative of a state of the combustion, selecting combustion indicators
that can be determined from the signal(s), and controlling progress of the
abnormal combustion as a function of the severity of the abnormal nature.
Claims 8, 49. These limitations apply the abstract idea; i.e., the mental
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process of determining the presence and extent of abnormal operation
through a specific evaluation. In view of the entirety of the other steps in the
process, the claims are not an attempt to patent the idea of a certain manner
of determining the presence and extent of abnormal operation. Instead, the
claims are directed to a process for controlling abnormal combustion,
beginning with generation of a signal from a spark-ignition internal-
combustion engine and ending with the control of the combustion occurring
in the engine.
Our determination that the additional elements improve the
functioning of a technology is supported by Diamond v. Diehr, 450 U.S. 175
(1981), cited in the 2019 Guidance as an exemplar of an exception integrated
into a practical application. 2019 Guidance, 84 Fed. Reg. at 55, n.29. In
Diehr, the Court determined that claims recited an abstract idea in the form
of a mathematical equation. Diamond v. Diehr, 450 U.S. at 187. The Court
found the additional elements to employ the mathematical equation in
conjunction with the other steps of the claimed process, stating “[W]e do not
view respondents’ claims as an attempt to patent a mathematical formula,
but rather to be drawn to an industrial process” that begins with “the loading
of the mold and end[s] with the opening of the press and production of a
synthetic rubber product.” Id. at 192-93, n.15. In the claims under appeal,
we similarly find the additional limitations to employ the identified abstract
idea in conjunction with the other steps of the claimed process for abnormal
combustion, such that the claims are drawn to the technology of controlling
combustion in a spark-ignition internal-combustion engine.
The claims do not present a situation such that the claim as a whole
remains directed to the abstract idea. Such a situation occurs where the
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additional limitations amount to no more than, for example, insignificant
extra-solution activity, restricting the abstract idea to a particular field of
use, a directive to “apply [the abstract idea],” or merely using a computer as
a tool to perform an abstract idea. See 2019 Guidance, 84 Fed. Reg. at 55,
nn.30-32 (collecting cases).
We contrast the situation presented in the claims under appeal with
situations in which the additional limitations were not found sufficient to
cause the claim to be directed to other than the recited abstract idea. In
CyberSource, the court found the claim to be directed to a recited mental
process. CyberSource, 654 F.3d at 1374 (cited by 2019 Guidance, 84 Fed.
Reg. at 55, n.31). In CyberSource, the claimed invention involved three
steps, each of which the court characterized as capable of being entirely
performed in the human mind. The first step, “obtaining information,” was
determined to be capable of being performed by a human “who simply reads
records . . . from a preexisting database.” CyberSource, 654 F.3d at 1372.
The second step, “constructing a map,” was determined to be capable of
being performed by a human “writing down a list” of the obtained
information. Id. at 1372-73. The third step, “utilizing the map ... to
determine if the . . . transaction is valid,” was determined to be capable of
performed by “the simple observation that numerous transactions ... all
originated from the same IP address.” Id. at 1373. Thus, in CyberSource,
the entirety of the process claim was considered to be a mental process.
However, unlike the situation presented in CyberSource, the claimed
invention, considered as a whole, cannot be practically performed in the
human mind. In the claims under appeal, there are steps that cannot be
practically performed in the human mind; i.e., additional limitations to the
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claimed mental process. As identified above, these additional limitations
include “at least one detector” and “a spark-ignition internal-combustion
engine,” used with the steps of “selecting combustion indicators that can be
determined from the at least one signal” and “controlling progress of the
abnormal combustion as a function of the severity of the abnormal nature of
the combustion.” The Examiner has not stated, nor do we determine, that
these additional limitations result in a process that could be practically
performed in the human mind in its entirety. Accordingly, the invention in
the claims on appeal is distinguishable from the claims at issue in
CyberSource.
Nor do we view the additional limitations merely as limiting the end-
use of the evaluation to, supplying only insignificant activity to, or merely
saying “apply it” to, spark-plug type internal combustion engines.
Additional limitations of such character were identified in the claims of
Parker v. Flook, 437 U.S. 584, 590 (1978). 2019 Guidance, 84 Fed. Reg. at
55, nn.31-32. In Flook, the Court determined that the Specification did not
purport to explain how to select the required variables used in the claimed
mathematical operation, or to explain how the mathematical operation
related to the claimed field of hydrocarbon catalytic conversion.4 The Court
4 Our reviewing courts have looked to the Specification to understand the
process being claimed. See Tilghman v. Proctor, 102 U.S. 707, 722 (1881)
(in discussing the eligibility of a prior patent, stating, “[t]he apparatus for
performing the process was not patented, and was not material. The patent
pointed out how the process could be effected, and that was deemed
sufficient”); In re TLI Commc ’ns LLC Patent Litig., 823 F.3d 607, 611-12
(Fed. Cir. 2016) (in analyzing subject matter eligibility, referring to the
specification in determining what the patent was directed to); United States
v. Adams, 383 U.S. 39, 49 (1966) (“[I]t is fundamental that claims are to be
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later characterized the limitations in Flook as “fail[ing] to limit the claim to a
particular application.” Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 81 (2012).
Unlike the situation in Flook, in Appellants’ Specification, the
additional elements are described in further detail in the Specification as to
the specifics of the implementation in the spark-ignition internal combustion
engine. For example, the additional element of “controlling progress of the
abnormal combustion as a function of severity of the abnormal nature of the
combustion” does not merely represent updating a numerical value, or a
general instruction to “apply” a particular normal/abnormal classification
scheme when operating an internal combustion engine. When read in view
of the disclosure, this additional element represents altering the
configuration of a spark-type internal combustion engine, such as by “fuel
re-injection at a predetermined crank angle [through valves]” or by “throttle
closure.” Spec. 84, 87. Accordingly, the claim limitations are more than
merely insignificant activity, or field of use limitation, to the recited mental
evaluation.
Further, our analysis is not affected by the lack of a computer in the
claims. We do not agree with the Examiner’s finding of a computer in any
of the claims (Final Act. 3), because none is expressly recited. We concur
with the Examiner’s finding that a computer program executed on a
disclosed engine calculator is not part of the claimed invention, because no
engine calculator (computerized or otherwise) is expressly recited. Final
Act. 4. While the written description in the originally-filed patent
construed in the light of the specifications and both are to be read with a
view to ascertaining the invention.”).
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application disclosure may aid understanding of the claim language, “it is
important not to import into a claim limitations that are not a part of the
claim.” SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed.
Cir. 2004). However, we note that the Diehr patent contained both a claim
that did recite a computer (claim 1) and a claim that did not recite a
computer (claim 11), with both being found eligible under the same analysis.
Diehr, 450 U.S. at 179-81. Similarly, the absence of a computer in
performing the claimed steps of controlling combustion does not affect our
§101 analysis in this situation. Whether the claimed controlling is explicitly
performed via computer or no particular mechanism is recited for
performing the claimed controlling, the step of controlling progress of the
abnormal combustion is a part of the claimed practical application of the
abstract idea identified in the claims.
Accordingly, we disagree with the conclusion of the Examiner that the
additional elements are “little else” in the sense that they are only drafting
efforts, in the form of insignificant post-solution activity or a field-of-use
limitation, such that the claims are directed to the identified abstract idea.
Instead, we agree with the Appellants’ assertion that the claims contain
additional elements such that the claims as a whole are directed to a process
for controlling combustion, which, as an improvement to a technology or
technological field (such as by saving an engine from “catastrophic
destruction”), integrates the abstract idea into a practical application of the
abstract idea. App. Br. 13-14.
Dependent claims 9-48 recite additional limitations to the equation
defining the closed surface in the multidimensional space, and to other
mathematical relationships defining the determinations used to control the
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progress of the abnormal combustion. These additional limitations further
define the abstract idea, but do not detract from the above determination that
the claims are directed to a practical application for controlling combustion.
Having determined the claims are directed to a process for controlling
combustion, we determine that the claims improve a technology or technical
field, and, thereby, integrate the abstract idea into a practical application of
the abstract idea. The claims, therefore, are not directed to an abstract idea,
and no further eligibility analysis is required. 2019 Guidance, 84 Fed. Reg.
at 51; Enfish, 822 F.3d at 1339; Thales Visionix, 850 F.3d at 1349.
Accordingly, claims 8^49 are eligible, and the Examiner’s rejection under
35 U.S.C. § 101 is reversed.
DECISION
For the above-described reasons, we reverse the Examiner’s rejection
of claims 8^19 under 35 U.S.C. § 101.
REVERSED
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