Ex Parte Jones et alDownload PDFPatent Trial and Appeal BoardJan 17, 201813941785 (P.T.A.B. Jan. 17, 2018) Copy Citation 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. 13/941,785 07/15/2013 David H. Jones B86918 1430US.1 (0061.1) 6092 128836 7590 01/19/2018 WOMBLE BOND DICKINSON (US) LLP Attn: IP Docketing P.O. Box 7037 Atlanta, GA 30357-0037 EXAMINER JONES, HUGH M ART UNIT PAPER NUMBER 2128 NOTIFICATION DATE DELIVERY MODE 01/19/2018 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): patentadmin @ B oeing. com ipdocketing @ wbd-u s. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID H. JONES, TYLER J. PETRI, DANIEL J. FOGARTY, CHAD R. DOUGLAS, ROGER NICHOLSON, LARS FUCKE, STEPHEN SWEENEY, and RICARDO M. FRICKS Appeal 2017-005565 Application 13/941,785 Technology Center 2100 Before MAHSHID D. SAADAT, JOHN A. JEFFERY, and DENISE M. POTHIER, Administrative Patent Judges. SAADAT, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1—24. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 According to Appellants, the real party in interest is The Boeing Company. App. Br. 1. Appeal 2017-005565 Application 13/941,785 STATEMENT OF THE CASE Introduction Appellants’ invention relates to a system for assessing the cumulative effects of single and multiple system failures in a highly-integrated complex airplane system. Spec. 123. Exemplary claim 1 under appeal reads as follows: 1. An apparatus for implementation of a failure-effect validation system, the apparatus comprising a processor and a memory storing executable instructions that, in response to execution by the processor, cause the apparatus to implement at least: an effects modeler configured to develop a cumulative effects model for failure modes of an aircraft, and by which a model of the aircraft is extendible to form an extended model, wherein the effects modeler is also configured to develop one or more search targets each of which includes logical expressions of notable hazards and one or more of crew workload, safety margin or physiological effects; a model analysis system coupled to the effects modeler and configured to perform an automated analysis including a graph search of possible states of the extended model to locate one or more search targets, the automated analysis being performed to identify cumulative effects of at least some of the failure modes; and an effects assessment system configured to generate a layout in which results of the automated analysis are displayable to enable an assessment of the cumulative effects. 2 Appeal 2017-005565 Application 13/941,785 The Examiner’s Rejections2 Claims 1—24 stand rejected under 35 U.S.C. § 101 as failing to recite patent-eligible subject matter. Final Act. 2. Claims 1—24 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Khuzadi (US 2008/0297375 Al; Dec. 4, 2008), 14 C.F.R. § 25.1309 (2007) (hereafter “CFR”), and Applicants’ Admitted Prior Art (hereafter “AAPA”). Final Act. 5-16. ANALYSIS We have reviewed the Examiner’s rejections in light of the arguments in the Appeal Brief and Reply Brief. We are unpersuaded by Appellants’ contentions and concur with the findings and conclusions reached by the Examiner as explained below. Rejection under § 101 The Examiner rejects claims 1—24 as being directed to non-statutory subject matter under 35 U.S.C. § 101 applying the two-part analytical framework of Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2355 (2014). Final Act. 2. Applying the first part of the analysis, the Examiner finds that claims 1—24 are directed to the abstract idea of the “mere automation of known practices in the art as well as compliance with Federal regulations.” Id. Applying the second part of the analysis, the Examiner finds that the additional claim elements are not enough to qualify as “significantly more” than the abstract idea itself, because the claims are a 2 The rejection of claims 1—24 under 35 U.S.C. § 112, second paragraph, has been withdrawn in the Examiner’s Answer. Ans. 2. 3 Appeal 2017-005565 Application 13/941,785 mere implementation of the abstract idea using a generic computer performing generic computer functions. Id. The Supreme Court, however, has long interpreted § 101 to include an implicit exception: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. See, e.g., Alice Corp., 134 S. Ct. at 2354 (internal quotation marks and citation omitted). The Court, in Alice, reiterated the two-step framework previously set forth in Mayo Collaborative Services v. Prometheus Labs., Inc., 566 U.S. 66, 75—77 (2012), “for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice Corp., 134 S. Ct. at 2355. Beginning with the first step of the Alice framework, we must determine “whether the claims at issue are directed to one of those patent- ineligible concepts,” including abstract ideas. Alice, 134 S. Ct. at 2355. In performing this determination, we ask whether the focus of the claims is on a specific asserted improvement in computer capabilities or, instead, on a process that qualifies as an “abstract idea” for which computers are invoked merely as a tool. Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335—36 (Fed. Cir. 2016) (citing Alice, 134 S. Ct. at 2358—59). Here, Appellants dispute the Examiner’s finding that the claims are directed to the abstract idea of the “‘mere automation of known practices in the art as well as compliance with Federal regulations.’” App. Br. 6—7. Specifically, Appellants argue that the asserted abstract idea is not an abstract idea and the Examiner has not identified any case law which identifies a “‘mere automation of known practices in the art as well as compliance with Federal regulations,”’ to be an abstract idea. Id. at 6. 4 Appeal 2017-005565 Application 13/941,785 We are not persuaded by Appellants’ arguments. We agree with the Examiner that independent claims 1, 9, and 17 are directed to an abstract idea, because the claims are directed to the “automation of [safety analysis] practices in the [aerospace industry] as well as compliance with Federal regulations” (Final Act. 2), which is analogous to a purely mental process that can either be done within the mind or using pen and paper, and, thus, is an abstract idea. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371 (Fed. Cir. 2011); see also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1146-47 (Fed. Cir. 2016). For example, the preamble of independent claim 1 recites “[a]n apparatus for implementation of a failure-effect validation system.” The Specification describes the failure- effect validation system as an “analysis of. . . system failures/malfimctions and their cascading effects at the complex-system level.” Spec. 13. The Specification describes the process as one that is typically a purely mental process that can either be done within the mind or using pen and paper stating: “[t]ypically such analyses are manually performed by groups of system analysts, without reference to a process capable of facilitating such analyses.” Id. Moving on to the implementation steps of independent claim 1, we find that “automation of [safety analysis] practices in the [aerospace industry] as well as compliance with Federal regulations” (Final Act. 2), essentially encompasses the basic steps of collecting, storing, and processing information. See Elec. Power Grp LLC v. Alstom S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016). The Federal Circuit has held that such steps are directed to no more than the abstract idea of conventional information processing that can be performed by humans and, thus, are patent-ineligible. 5 Appeal 2017-005565 Application 13/941,785 See Content Extraction and Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1345—48 (Fed. Cir. 2014);. We find that the computer elements recited in claim 1 are merely tools for implementing the aforementioned abstract idea because they merely use conventional computer and database programming to for “automation of [safety analysis] practices in the [aerospace industry] as well as compliance with Federal regulations.” Claim 1; Spec. 13; see also Smart Gene, Inc. v. Adv. Bio. Labs. SA, 555 F. Appx. 950, 954 (Fed. Cir. 2014) (finding claims patent ineligible because they did “no more than call on a ‘computing device,’ with basic functionality for comparing stored and input data and rules, to do what doctors do routinely”). Because we conclude that the claims are directed to an abstract idea, we turn to the next step of the Alice analysis. In step two, we consider the elements of the claims “individually and ‘as an ordered combination’” to determine whether the additional elements “‘transform the nature of the claim’ into a patent-eligible application.” Alice, 134 S. Ct. at 2355 (quoting Mayo Collaborative Svs. v. Prometheus Labs., Inc., 566 U.S. 66, 78 (2012)). The Examiner finds that the additional elements amount to nothing more than an instruction to apply the abstract idea to a generic computer performing generic computer functions. Final Act. 2. Appellants dispute the Examiner’s characterization, and assert that the steps of “developing a cumulative effects model to extend an aircraft model, performing an automated analysis of the extended model to locate search target(s), and generating a layout in which results of the automated analysis are displayable to enable assessment of cumulative effects of failure modes of the aircraft,” demonstrate that the claims do not broadly and generically 6 Appeal 2017-005565 Application 13/941,785 claim use of a computer to perform an abstract business practice. App. Br. 8 (citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258 (Fed. Cir. 2014)). Appellants highlight the developing of a cumulative effects model, analyzing the cumulative effects model to locate search targets, and generating a layout as being ‘“additional features’ that ensure the claims are ‘more than a drafting effort designed to monopolize the [abstract idea].’” Id. We are unpersuaded, however, because Appellants do not identify how the recited development of the model, analysis of the model, or generating of a layout that deviates from its conventional human implemented approach other than to assert that complex systems may be too complex for traditional analysis performed by human system analysts. Spec. 13. Consequently, although the development of the model, analysis of the model, and generating of a layout may themselves be rooted in technology, their conventional use alone is insufficient to rise to the level of “significantly more.” Accordingly, we conclude that claims 1—24 are directed to an automation of a human-implemented safety analysis practice in the aerospace industry as well as compliance with Federal regulations, which is an abstract idea, and that the other claim limitations do not articulate an inventive concept that is “significantly more” than that abstract idea in a manner sufficient to confer patent eligibility under 35U.S.C. § 101. Therefore, we sustain the Examiner’s rejection of claims 1—24 under 35U.S.C. § 101. Rejection under § 103 The Examiner finds that all of the recited claim elements of independent claim 1, with the exception of the computer automation of the 7 Appeal 2017-005565 Application 13/941,785 elements, are disclosed by the CFR as well as AAPA. Final Act. 5, 6 (citing CFR; Spec. ]Hf 3—6, 57). The Examiner further concludes that [i]t would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to automate the claimed steps since it is generally recognized that merely providing automatic means to replace a manual activity which accomplishes the same result is not sufficient to distinguish over the prior art. Id. at 7. Appellants argue that neither the CFR nor the AAPA teaches an ‘“effects modeler configured to develop a cumulative effects model for failure modes of [an aircraft], and by which a model of the [aircraft] is extendible to form an extended model,’” as recited in claim 1 and similarly recited in independent claims 9 and 17. App. Br. 9, 10. Specifically, Appellants argue that “[t]he claims are directed to an improved system for assessing cumulative effects,” while the CFR “simply provide[s] airworthiness standards for aircraft equipment, systems and installations,” and the AAPA “simply describes conventional techniques for assessing cumulative effects.” Id. We are not persuaded by these arguments because Appellants have not adequately explained how the AAPA’s conventional techniques for assessing cumulative effects is distinguishable from the claimed effects modeler. The Examiner directs us to AAPA in paragraphs 3—6 of the Specification, stating in pertinent part: [0003] A complex system such as an aircraft may be generally composed of a number of systems, and enable functionality greater than their individual systems. . . . Failures or malfunctions of one or more of these systems often affect other systems, directly or indirectly, the collection of these effects often referred to as “cascading” effects. Additionally, analysis 8 Appeal 2017-005565 Application 13/941,785 of these system failures/malfunctions and their cascading effects at the complex-system level is often required as part of a certification process. Typically such analyses are manually performed by groups of system analysts, without reference to a process capable of facilitating such analyses. [0004]. . . Standards established by regulators, such as Code of Federal Regulations (14 CFR) 25.1309, require that the hazard categorization of a failure takes into account all relevant factors. These factors may include effects on the vehicle (lost or degraded function/performance, reduction of safety margin), effects on crew members (increase in workload, adverse operational or environmental conditions), and/or effects on occupants. [0005] There are a number of safety analysis practices in the aerospace industry. For example, functional hazard assessment (FHA) is a top-down analysis of functions to identify and classify the severity of failures of the functions. Fault tree analysis (FTA) is top-down analysis in which the causes of a failure effect are analyzed using logic (e.g., Boolean logic) that combines contributing failures. Failure modes and effects analysis (FMEA) is a bottom-up analysis approach to identify the effects of failures on system functions and operations. FMEA is often used in conjunction with FTA, and can serve to complete and validate the FTA. Model-based safety analysis (MBSA) is an emerging practice in which the system design and safety assessment processes develop a common model that is used to automatically generate a consistent set of safety artifacts, including minimal cut set (MCS) fault trees and FMEA summaries. Hence, the Examiner finds that the AAPA describes the use of safety analysis practices including FHA, FTA, and MBS A to create a cumulative effects model and extended model that considers possible cascading effects of failures/malfunctions for a particular aircraft. Ans. 10, 11. We discern no error in those findings because Appellants have not sufficiently explained how the consideration of cascading effects of failures and the use of analysis 9 Appeal 2017-005565 Application 13/941,785 practices such as FHA, FT A, and MBS A differ from the claimed cumulative model or extended model. Id. The Examiner further finds that Khuzadi teaches “the effects modeler is also configured to develop one or more search targets each of which includes logical expressions of notable hazards and one or more of crew workload, safety margin or physiological effects,” as well as “a model analysis system coupled to the effects modeler and configured to perform an automated analysis including a graph search of possible states of the extended model to locate one or more search targets.” Final Act. 7 (citing Khuzadi, Figs. 1—3, 4a-4c; Tflf 36—71, 79—84, 96, 97) (emphasis omitted). In addition, the Examiner finds that AAPA, through its teaching of using fault tree analysis (FTA), further teaches each of these limitations. Ans. 12; Final Act. 7. Appellants argue that Khuzadi does not disclose “development of search target(s) each of which includes logical expressions of notable hazards and crew workload, safety margin and/or physiological effects,” or “a graph search of possible states of the extended model to locate one or more search targets.” App. Br. 10. Specifically, Appellants argue that although Khuzadi discloses a cause tree describing hazardous conditions that may occur in a vehicle, the disclosed cause tree is not the same as the claimed search target and “neither the claims nor the [Specification suggest that the search target is merely a FTA.” Reply Br. 8. We are not persuaded. AAPA, along with Khuzadi, teaches assessing factors (e.g., safety margins, crew member workload, adverse operational or environmental conditions, and occupants’ effects) as part of the system failure analysis. Spec. 14, quoted and cited in Final Act. 6. Also, Khuzadi 10 Appeal 2017-005565 Application 13/941,785 discloses the creation of a hazardous conditions model for a vehicle (extended model) by “identifying] all potential or design-based hazardous conditions that may develop during the operation of the vehicle under different operational modes. This hazard analysis may include results contained in a failure mode effects analysis (FMEA) if the loss of any single part causes a hazardous condition to develop.” Khuzadi 196. The hazard analysis “may be used to identify circumstances that lead to a hazardous condition as well as determining a mechanism for controlling the hazardous condition.” Id. 197. Using the developed model, specific cause threads, identified by “different situations or scenarios that may lead to a hazardous condition,” may be identified (searched) for monitoring. Id. Tflf 64, 65, 69, 70. AAPA similarly describes using FMEA with FTA to perform a “top- down analysis in which the causes of a failure effect are analyzed using logic (e.g., Boolean logic) that combines contributing failures,” where “FMEA is often used in conjunction with FTA, and can serve to complete and validate the FTA.” Spec. 15. In light of these disclosures referenced by the Examiner, we find that the combined teachings of AAPA and Khuzadi’s hazard analysis model are capable of being “configured to develop one or more search targets each of which includes logical expressions” and “configured to perform an automated analysis including a graph search of possible states of the extended model to locate one or more search targets,” as recited in claim 1. Appellants have not persuasively explained how the teachings of Khuzadi and AAPA are distinguishable from the claimed subject matter. Finally, Appellants argue that the Final Rejection is improper because: 11 Appeal 2017-005565 Application 13/941,785 [T]he Examiner cites six (6) figures and thirty-six (36) paragraphs of Khuzadi, and refers again to “Applicants’] admission” for features of independent [cjlaim 1, but the Examiner provides absolutely no explanation as to how the cited portions of Khuzadi or “Applicants’] admission” read on the claim limitations for which they are cited. App. Br. 10. The Federal Circuit set forth the standard for determining the sufficiency of an Examiner’s rejection as follows: [T]he PTO carries its procedural burden of establishing a prima facie case when its rejection satisfies 35 U.S.C. § 132, in “notifying] the applicant. . . [by] stating the reasons for [its] rejection, or objection or requirement, together with such information and references as may be useful in judging of the propriety of continuing the prosecution of [the] application.” That section “is violated when a rejection is so uninformative that it prevents the applicant from recognizing and seeking to counter the grounds for rejection.” In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (citations omitted) (alterations in original). We are not persuaded that the Final Rejection in this case is “so uninformative that it prevents the applicant from recognizing and seeking to counter the grounds for rejection.” Although the Examiner cited a large number of paragraphs of Khuzadi, the Examiner directed Appellants to a specific feature of those paragraphs, namely, the cause tree. Final Act. 7—8; see also Ans. 13—14 (further explaining Khuzadi’s cited paragraphs). Further, the Examiner’s citation to AAPA consisted of merely four paragraphs. Id. at 5. We do not agree that such a citation prevents Appellants from being able to respond adequately to the ground of rejection. 12 Appeal 2017-005565 Application 13/941,785 DECISION We affirm the Examiner’s decision to reject claims 1—24. 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). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 13 Copy with citationCopy as parenthetical citation