Ex Parte Govoni

Patent Trial and Appeal Board

Sep 26, 2018

14178682 (P.T.A.B. Sep. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/178,682 02/12/2014
79380 7590 09/28/2018
U.S. ARMY CECOM LCMC, LEGAL OFFICE
6565 Surveillance Loop
Third Floor, Legal Office
Aberdeen Proving Ground, MD 21005
FIRST NAMED INVENTOR
Mark Govoni
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.
CECOM5629 3141
EXAMINER
GUILL, RUSSELL L
ART UNIT PAPER NUMBER
2123
NOTIFICATION DATE DELIVERY MODE
09/28/2018 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):
azza.m.jayaprakash.civ@mail.mil
ronald.c.krosky.civ@mail.mil
teresa.m.ferris.civ@mail.mil
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK GOVONI
Appeal2018-002840 1
Application 14/178,682
Technology Center 2100
Before ELENI MANTIS MERCADER, NORMAN H. BEAMER, and
ADAM J. PYONIN, Administrative Patent Judges.
PYONIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 2--4, 6-12, and 14--23. Final Act. 2.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The Government of the United States, as represented by the Secretary of
the Army, is identified as the real party in interest. Appeal. Br. 2.
Appeal2018-002840
Application 14/178,682
STATEMENT OF THE CASE
Appellant's disclosure relates to the "production of an array pattern
and an element pattern for an antenna." Abstract. Claims 6, 8, and 16 are
independent, and are reproduced below for reference:
6. A system, comprising:
a production component configured to produce an
element pattern with an array pattern for an antenna; and
an output component configured to output the element
pattern,
where the production component is configured to
produce the element pattern by way of a normal random
variable sequence and where the production component, the
output component, or a combination thereof are implemented,
at least in part, as non-software.
8. A non-transitory computer-readable medium that
stores processor-executable instructions that when executed by
a processor cause the processor to perform a method, the
method comprising:
collecting a parameter set;
generating a pattern set; and
causing the pattern set to be outputted,
where:
the pattern set comprises a randomized array pattern for
an antenna that is based, at least in part, on the parameter set
and
the pattern set comprises a randomized element pattern
for the antenna that is based, at least in part, on the parameter
set.
16. A system, comprising:
a processor;
a non-transitory computer-readable storage medium
communicatively coupled to the processor and storing
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processor executable components to facilitate operation of
components comprising:
a reception component that receives a parameter
set, the parameter set comprising an antenna parameter set and
an equation variable set;
a production component that produces a pattern set
that is based, at least in part, on the parameter set; and
an output component that causes output of the
pattern set,
where:
the pattern set comprises a randomized array
pattern for an antenna and a randomized element pattern for the
antenna,
the randomized element pattern is such that a
monitoring apparatus does not identify the antenna as an object
of interest, and
the randomized array pattern is such that the
monitoring apparatus does not identify the antenna as the object
of interest.
The Examiner's Rejections
RI: Claims 2--4, 6-12, and 14--23 stand rejected under 35 U.S.C. § 101 as
being directed to ineligible subject matter. Final Act. 14.
R2: Claims 3, 4, 6, 7, and 22 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Das, "Optimal angular locations of elements for
asymmetric circular array antennas," 2010, 2010 IEEE Symposium on
Industrial Electronics and Applications, pages 681---685, in view of
Buchanan, "A study of aperiodic (Random) arrays of various geometries,"
2011, Texas A&M University, 215 pages. Final Act. 17.
R3: Claim 21 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Das, Buchanan, and Hauer (US 3,268,893; Aug. 23, 1966). Final Act.
23.
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R4: Claim 2 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Das, Buchanan, Hauer, and Panicali, "A probabilistic approach to large
circular and spherical arrays," 1969, IEEE Transactions on Antennas and
Propagation, volume AP-17, number 4, pages 514--522. Final Act. 26.
R5: Claims 8, 10-12, and 14--17 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Das, Hauer, and Panicali. Final Act. 28.
R6: Claim 23 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Das, Buchanan, Hauer, and Panicali. Final Act. 39.
R7: Claims 9 and 18-20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Das, Hauer, Panicali, and Wang, "Low RCS dipole array
synthesis based on MOM-PSO hybrid algorithm," 2009, Progress in
Electromagnetic Research, volume 94, pages 119-132. Final Act. 41.
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellant's
arguments. We have considered in this Decision only those arguments
Appellant actually raised in the Briefs. Any other arguments Appellant
could have made but chose not to make are deemed waived. See 3 7 C.F .R.
§ 4I.37(c)(l)(iv). We are not persuaded of Examiner error; we adopt the
Examiner's findings and conclusions as our own, and we add the following
for emphasis.
A. Rejection RI: Non-statutory Subject Matter
The system of claim 6 includes (a) "a production component
configured to produce an element pattern with an array pattern for an
antenna" and (b) "an output component configured to output the element
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pattern"; claim 16 recites similar "output" and "production" components.
Claim 8 includes method steps of "generating a pattern set" and "causing the
pattern set to be outputted."
We agree with the Examiner that independent claim 6 "is directed to a
system that produces an element pattern for an antenna" (Final Act. 14) and
the claimed production component "perform[ s] abstract mathematical
calculations and data manipulation." Final Act. 14--15, citing In re Abele,
684 F.2d 902 (CCPA 1982). The Examiner further finds, and we agree, that
the limitation of "'produce the element pattern by way of a normal random
variable sequence,' appears to be a mathematical algorithmic calculation"
(Ans. 4) and that the "process could be performed mentally" (Ans. 5).
We find the independent claims are comparable to concepts our
reviewing courts have found to be abstract. See Synopsis, Inc. v. Mentor
Graphics Corp., 839 F.3d 1138, 1146-47 (Fed. Cir. 2016) ("[W]e continue
to 'treat[] analyzing information by steps people go through in their minds,
or by mathematical algorithms, without more, as essentially mental
processes within the abstract-idea category."' (second alteration in original)
(citation omitted)); see also FairWarning IP, LLC v. Iatric Sys., Inc., 839
F.3d 1089, 1093 (Fed. Cir. 2016) (abstract ideas include collecting
information and analyzing that information "by steps people go through in
their minds, or by mathematical algorithms"); Digitech Image Techs., LLC v.
Elecs.for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014) ("Without
additional limitations, a process that employs mathematical algorithms to
manipulate existing information to generate additional information is not
patent eligible.").
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Additionally, we are not persuaded by Appellant's comparison of the
independent claims to claims found patent eligible by our reviewing court,
such as the claims in McRO, Inc. v. Bandai Namco Games America Inc., 837
F.3d 1299 (Fed. Cir. 2016), Enfzsh, LLC v. Microsoft Corp., 822, F.3d 1327
(Fed. Cir. 2016), and Finjan, Inc. v. Blue Coat Systems, Inc., 879 F.3d 1299
(Fed. Cir. 2018). See Appeal Br. 4---6, Reply Br. 2-5. Unlike the claims in
these cases, Appellant's claims do not provide improvements to the
underlying technology: the claims may be performed in the human mind
and/or by use of generic computer technology. See, for example, Spec. ,r 47
et seq., displaying "sample code in MATLAB" that can be "employed to
practice aspects disclosed herein." See also Spec. ,r,r 21-23; cf Synopsys,
839 F .3d at 1152 ("given that the claims are for a mental process,
assignment conditions, which merely aid in mental translation as opposed to
computer efficacy, are not an inventive concept that takes the Asserted
Claims beyond their abstract idea"); DDR Holdings, LLC v. Hotels.com,
L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) ("after Alice, there can remain no
doubt: recitation of generic computer limitations does not make an otherwise
ineligible claim patent-eligible").
Thus, we agree with the Examiner that "Appellant's claimed invention
is not directed to an improvement in the computer functionality itself, but on
an abstract idea for which the computer is invoked merely as a tool." Ans.
10.
We further are not persuaded by Appellant's comparison of the
independent claims to the claims of Thales Visionix Inc. v. United States,
850 F.3d 1343 (Fed. Cir. 2017), in which the Federal Circuit found "the
claims here result in a system that reduces errors in an inertial system that
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tracks an object on a moving platform." Id. at 1348. Appellant argues that
"[t]he unconventional nature of [Appellant's] claims clearly is in line with
Thales" (AppealBr. 7) and "[a]s Thales recited non-conventional mounting,
the claims here recite non-conventional array and element patterns,
specifically thorough randomness and not optimization as is disclosed by
Das." Reply Br. 4. Appellant's argument is not persuasive, as the present
claims are not directed to an antenna array and element patterns; rather, the
claims are directed to systems and a medium for designing an antenna, and
encompass mental processes. Further, the Examiner has shown that
employment of randomness in antenna design is a conventional solution.
See Final Act. 29, citing Hauer 7:37--42, which states that
[i]n all of the embodiments of the present invention a transmitted
random signal incorporating energy dispersed over a wide angle
has been used. An enemy consequently has great difficulty in
detecting the presence of the radar, and more so in detecting the
characteristics of the radar signal due to its random form.
Therefore, we are not persuaded the Examiner erred in determining
"[ t ]he claims, both as a whole and the individual claim elements, do not
appear to have an element or combination of elements that is sufficient to
ensure that the claim in practice amounts to significantly more than the
abstract idea itself." Ans. 8.
Accordingly, we are not persuaded the Examiner erred in finding the
claims patent ineligible.
B. Rejections R2-R7: Obviousness
Appellant argues that "the entire purpose of Das is to produce an
optimized element pattern" and thus "it would be a frustration of purpose to
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combine Das with anything that goes against this optimization - including
anything random discussed in Panicali or Hauer." Appeal Br. 11. Appellant
admits that Das teaches using "chromosomes [] built with random value
genes," but contends that "[t]he fact that the chromosomes are constructed
from genes of random values does not mean the chromosomes themselves
are random any more than random sized stones can be used to build a wall of
a non-random height." Appeal Br. 12. Appellant further contends that "the
probabilistic and random nature has to do with what is used to construct
chromosomes, not the actual selection of element location." Appeal Br. 13.
We are not persuaded of error. We agree with the Examiner that an
ordinarily skilled artisan would "extract[] component teachings of Das and
combine[] those teachings with the teachings of Hauer and Panicali," and
that "the test [ for obviousness] is what the combined teachings of those
references would have suggested to those of ordinary skill in the art." Ans.
1 7. Das teaches an optimization method for an antenna having a
"[g]eometry of [an] N element Asymmetric non-uniform circular array of
isotropic radiators." Das 682, Fig. 1; see also Fig. 2.
One of ordinary skill in the art would recognize several important
teachings from the disclosure of Das:
1. for any given array configuration such as the configuration shown in
Figure 1, an "array factor" can be calculated. See Das 681, equation
(2);
2. other quantities, such as a side lobe level, first null beamwidth, and a
cost function, can be derived. See Das 682, equation (3); and
3. starting with an initial uniform angle spacing, a real coded genetic
algorithm will use a randomization method to select final placement
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of the elements forming the asymmetric non-uniform circular array
such that the cost function is minimized. See Das 682-683, Sections
III and IV.
See Final Act. 17-18; Ans. 16, 24. Thus, we find Das teaches the recitation
"by way of a ... random variable sequence," within the meaning of the
claim. Further, one skilled in the art, aware of the teachings of Buchanan,
Hauer, and Panicali, would also recognize the importance of random
placement of array elements in antenna design. In particular, one of
ordinary skill in the art would recognize the following teachings from the
other cited references:
1. "collaborative beamforming" uses a randomly distributed antenna
array which can "suppress sidelobe behavior." Buchanan iii-iv;
2. a "transmitted random signal incorporating energy dispersed over a
wide angle" results in "[ a ]n enemy consequently has great difficulty in
detecting the presence of the radar and more so in detecting the
characteristics of the radar signal due to its random form." Hauer
7:37--42; and
3. random placement of elements in a circular array follows a probability
distribution that allows a designer to select a number of elements so
that the resulting pattern possesses particular beam properties.
Panicali 516-517, Section III, equations (26), (28), Table I.
See Final Act. 18-19, 29-30.
Here, the rejections involve a combination of the teachings of Das and
(1) Buchanan (Rejection 2), or (2) Hauer (Rejections 3-7). The Examiner
relies on Das as teaching the components and steps used to calculate
properties of an antenna beam pattern generated using a particular number
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and placement of elements in a circular array. This teaching is separate from
Das' s optimization; we agree with the Examiner that such teaching is not
frustrated when combined with the use of randomization of the placement of
elements as taught by Buchanan, Hauer, and Panicali. See Ans. 20; see also
Ans. 16. We note Das teaches the randomization is used for the purposes of
optimization. See Ans 16; Das 682---683. Separately, we also agree with the
Examiner that the references each teach optimizing an antenna and thus one
of ordinary skill, in view of the combined references, would optimize an
antenna (such as by using randomization) in order to reach the desired
solution. See Ans. 22.
Appellant's arguments ignore the teachings of Das that an arbitrary
placement of elements in a circular array has quantities that can be
analytically calculated; instead, Appellant's arguments focus on the
teachings of Das, that using a genetic algorithm, the placement of elements
can be determined so as to optimize a cost function. Based on the record
before us, we see no reason that one of ordinary skill would not combine the
cited references in the manner claimed. Accordingly, we are not persuaded
the Examiner erred in Rejections 2-7 as argued by Appellant, and we affirm
the rejections of independent claims 8 and 16, as well as claims 2--4, 7-12,
and 14--22 not argued separately. See Appeal Br. 8-15.
C. Rejections R2 and R6: Obviousness
Appellant argues the Examiner erred in the rejection of independent
claim 6 and dependent claim 12, because Buchanan's Gaussian distribution
of elements in a normalized circular aperture "is far short of teaching a
normal random variable sequence." Appeal Br. 15. Appellant contends
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Buchanan's teaching "relates to normalization of an outcome (i.e.,
normalization on where to place elements) while claims 6 and 23 recite a
sequence used to produce an element pattern." Appeal Br. 16.
that
We are not persuaded of error. The Examiner finds, and we agree,
Figure 3 8 above shows a random element pattern that are
Gaussian distributed, and the term, "normal random variable,"
means a Gaussian random variable. The terms[] "normal
distribution," and "Gaussian distribution" have the same
meamng.
Ans. 32. The Examiner reasonably interprets the claimed "sequence" as
corresponding to the set of points the Examiner refers to as "a random
element pattern." Appellant does not point to any definition of the term
"sequence" appearing in the disclosure. Accordingly, we affirm the
rejection of independent claim 6 and dependent claim 23.
DECISION
The Examiner's decision rejecting claims 2--4, 6-12, and 14--23 under
35 U.S.C. § 101 is affirmed.
The Examiner's decision rejecting claims 2--4, 6-12, and 14--23 under
35 U.S.C. § 103 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). See 37
C.F.R. § 4I.50(f).
AFFIRMED
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