Ex Parte Looze et al

Patent Trial and Appeal Board

Dec 7, 2017

14699105 (P.T.A.B. Dec. 7, 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.
14/699,105 04/29/2015 Douglas P. Looze H22.00010001 2092
68242 7590 12/11/2017
FIALA & WEAVER P.L.L.C.
C/O CPA GLOBAL
900 Second Avenue South
Suite 600
MINNEAPOLIS, MN 55402
EXAMINER
SUGLO, JANET L
ART UNIT PAPER NUMBER
2864
NOTIFICATION DATE DELIVERY MODE
12/11/2017 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):
DOCKETING@CPAGLOBAL.COM
docketing@fwiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DOUGLAS P. LOOZE and PAUL W. KELLEY1
Appeal 2017-009927
Application 14/699,1052
Technology Center 2800
Before ROMULO H. DELMENDO, BEVERLY A. FRANKLIN, and
SHELDON M. McGEE, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
1 “Snappafras Corp.” (the Assignee by an Assignment recorded in Reel
035793/Frame 0042) is identified as the applicant (hereinafter “Appellant”)
and the real party in interest (Application Data Sheet filed April 29, 2015;
Appeal Brief filed March 23, 2017, hereinafter “Appeal Br.,” 1).
2 Pursuant to 37 C.F.R. § 1.102(c)(1), a Petition to Make Special Based on
Age for Advancement of Examination of this application was filed April 25,
2016 and granted automatically.
Appeal 2017-009927
Application 14/699,105
The Appellant appeals under 35 U.S.C. § 134(a) from the Primary
Examiner’s final decision to reject claims 1—9, 12—15, 17, 18, and 20-24
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter.3
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
I. BACKGROUND
The subject matter on appeal relates to an automated method for
determining a direction of motion of a pedestrian based on manipulation of
data obtained from an accelerometer in the pedestrian’s mobile device such
as a smart phone, a tablet computer, a laptop computer, a wearable
computing device, a wearable fitness device, a pedometer, or a personal
media player (Specification filed April 29, 2015, hereinafter “Spec.,” 3,
28). Representative claim 1 is reproduced from page A1 of the Claims
Appendix to the Appeal Brief, with emphasis and some spacing added, as
follows:
1. An automated method for determining a direction of
motion of a pedestrian, comprising:
obtaining a first series of accelerometer measurements
from an accelerometer disposed in a mobile device, the
accelerometer measurements in the first series of accelerometer
measurements being relative to a reference frame of the mobile
device;
3 Appeal Br. 11—27; Reply Brief filed July 14, 2017, hereinafter “Reply Br.,”
1—9; Final Office Action entered September 28, 2016, hereinafter “Final
Act.,” 24; Examiner’s Answer entered May 19, 2017, hereinafter “Ans.,” 2
(maintaining only the 35 U.S.C. § 101 rejection as to claims 1—9, 12—15, 17,
18, and 20—24 following entry of an Amendment filed December 28, 2016 in
reply to the Final Office Action).
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Application 14/699,105
obtaining an estimated attitude of the mobile device for
each of the accelerometer measurements in the first series of
accelerometer measurements;
rotating each accelerometer measurement in the first series
of accelerometer measurements using the corresponding
estimated attitude of the mobile device to obtain a second series
of accelerometer measurements, the accelerator measurements in
the second series of accelerator measurements being relative to a
local level reference frame;
filtering the second series of accelerometer measurements
to obtain a first series of frequency components representing
acceleration at an estimated stride frequency of the pedestrian in
a first direction and a second series of frequency components
representing acceleration at the estimated stride frequency of the
pedestrian in a second direction that is orthogonal to the first
direction;
determining a heading angle of a major axis or a semi­
major axis of an ellipse defined at least by one or more
frequency components in the first series of frequency
components and one or more frequency components in the
second series of frequency components, wherein determining
the heading angle comprises at least one of:
(a) identifying an ellipse that best fits at least one or
more accelerometer measurements in the first series of
accelerometer measurements and one or more
accelerometer measurements in the second series of
accelerometer measurements; and
calculating the major axis or the semi-major axis
of the identified ellipse; or
(b) identifying a straight line that best fits a subset of the
frequency components in the first series of frequency
components and in the second series of frequency
components that correspond to an integer number of
cycles; and
determining a slope of the straight line ',
determining the direction of motion of the pedestrian
based on the heading angle; and
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Application 14/699,105
displaying the direction of motion of the pedestrian or
information derived therefrom on a graphical user interface of
the mobile device.
II. DISCUSSION
The Appellant argues the claims together (Appeal Br. 11—26).
Therefore, we confine our discussion to claim 1, which we select as
representative pursuant to 37 C.F.R. § 41.37(c)(l)(iv). As provided by this
rule, claims 2—9, 12—15, 17, 18, and 20—24 stand or fall with claim 1.
The Examiner finds that the invention recited in claim 1 “is directed to
a judicial exception (i.e., a law of nature, a natural phenomenon, or an
abstract idea) without significantly more” (Final Act. 2; Ans. 2—3).
Specifically, the Examiner finds that the claim does not include elements
sufficient to confer patent eligibility “because the only . . . elements [other
than the abstract idea] are using an accelerometer to collect data, which is
mere data gathering recited at a high level of generality, and displaying the
action on the display of a mobile device, which is insignificant extra­
solution activity using conventional equipment” {id. at 3). Thus, according
to the Examiner, “[t]he claim as a whole does not confine the claim to a
particular useful application, and it does not amount to significantly more
than the abstract idea itself’ {id. at 3 4).
The Appellant contends that “[w]hen viewing the claims as a whole,
the claims are directed to a non-abstract process implemented in software for
taking data obtained from sensors and processing that data in a novel and
non-obvious way to generate a pedestrian direction of motion” (Appeal Br.
16). According to the Appellant, conventional devices for determining a
pedestrian’s direction of motion does not properly account for “side-to-side
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Application 14/699,105
motion experienced by the device” and, when such devices are further away
from the pedestrian’s body, the device’s accuracy is diminished (id.). The
Appellant urges that the claimed invention solves this problem by
considering a heading angle, which is determined in one of two ways “(a)”
and “(b),” as recited in reproduced claim 1 above (id. at 16—17). In support
of patent eligibility, the Appellant relies on several court precedents (id. at
18-26).
We do not find the Appellant’s arguments sufficient to identity any
reversible error in the Examiner’s rejection.4 Because we are in complete
agreement with the Examiner’s reasoning and rebuttal to the Appellant’s
arguments on appeal, we adopt them as our own and add the following for
emphasis.
The Supreme Court of the United States reaffirmed the long-held
principle that 35 U.S.C. § 101 contains an ‘“important implicit exception:
Laws of nature, natural phenomena, and abstract ideas are not patentable.’”
Alice Corp. v. CLSBankInt’l, 134 S. Ct. 2347, 2354 (2014) (quoting Assoc,
for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116
(2013)). The Court provided a two-step analytical framework for
determining whether a claim is patent eligible. Id. at 2355. The first step
requires determining whether the claim is directed to one of these
exceptions, such as an abstract idea. Id. If so, the second step requires
determining “‘[w]hat else is there in the claims before us?”’ Id. (quoting
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1297
(2012). That step involves searching for an inventive concept—i.e., an
element or combination of elements in the claim that is “‘sufficient to ensure
4 See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
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that the patent in practice amounts to significantly more than a patent upon
the [abstract idea] itself.’” Id. (quotingMayo, 132 S. Ct. at 1294).
Applying this framework, we find that claim 1 is directed to the
simple concept of taking account of a pedestrian’s heading angle to improve
the determination of a pedestrian’s direction of motion (claim 1; see also
Spec. 2—3). A patent on such a concept would preempt its use in all fields
and would effectively grant a monopoly over the abstract idea of taking into
account side-to-side motion in determining direction of motion. Alice, 134
S. Ct. at 2354.
Having determined that the inventive concept is directed to an abstract
idea, we look to see if claim 1 recites any additional element or combination
of elements sufficient to ensure that any patent issuing with the claim
amounts to “significantly more” than the abstract. We find, as did the
Examiner (Final Act. 3^4; Ans. 4), that the claim fails to include any such
element or combination of elements. As the Examiner states, “the only
additional elements are using an accelerometer to collect data, which is mere
data gathering recited at a high level of generality, and displaying the action
on the display of a mobile device, which is insignificant extra-solution
activity using conventional equipment” (Final Act. 3—4). Although the
Appellant argues that claim 1 is “directed to a non-abstract process
implemented in software for taking data obtained from sensors and
processing that data in a novel and non-obvious way to generate a pedestrian
direction of motion” (Appeal Br. 16) and that such an implementation solves
a problem in conventional devices {id. at 16—17), Appellant fails to direct us
to sufficient evidence establishing that any problem has been solved or that a
person skilled in the art would not have considered motion in all directions,
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Application 14/699,105
including side-to-side or angular motion, in determining a direction of
motion. Cf. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (mere
lawyer’s arguments or conclusory statements, which are unsupported by
concrete factual evidence, are entitled to little probative value).
For these reasons and those given by the Examiner, we sustain the
Examiner’s rejection.
III. SUMMARY
The Examiner’s final decision to reject claims 1—9, 12—15, 17, 18, and
20-24 under 35U.S.C. § 101 as being directed to patent-ineligible subject
matter 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)(1).
AFFIRMED
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