Ex Parte Motupalli

Patent Trials and Appeals Board

Apr 8, 2019

13516443 - (D) (P.T.A.B. Apr. 8, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/516,443 06/15/2012
7590 04/09/2019
Caleb Suresh Motupalli
Rottelaillu House of Bread
29-37-31 Eluru Road Upstairs
Vijayawada, 520002
INDIA
FIRST NAMED INVENTOR
Caleb Suresh Motupalli
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.
3342
EXAMINER
PELLETT, DANIEL T
ART UNIT PAPER NUMBER
2121
MAIL DATE DELIVERY MODE
04/09/2019 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 CALEB SURESH MOTUP ALLI
Appeal2018-006274
Application 13/516,443
Technology Center 2100
Before ROBERT E. NAPPI, JOHN A. JEFFERY, and JOHN A. EV ANS,
Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 27-29, 31-35, 37--42, and 44--46. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Appellant's invention is entitled a "Necktie-imitating Persona
Extender/Environment-Integrator and Method for Super-Augmenting a
Persona to manifest a Pan-Environment Super-Cyborg or Wedded Avatar of
Christ with eThrone for Global Governance." Appellant's invention is said
1 Appellant identifies the real party in interest as Caleb Suresh Motupalli.
App. Br. 5.
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to relate to "cognitive Information technology engineering of a
morphological solution and a handle for the same to the macroscopic
problem of n-entropy," namely "the loss of control or information in the
globalized world." Spec. 1. By using a "Christocratic Necked Service
Oriented Architecture[,] ... even Global Cyborgic Conglomerate
Christs/Superhumans can be manifested." Id. Claim 27 is illustrative:
27. A persona-extending-augmenting apparatus for at least a first human
actor or developer comprising:
a) at least a first computer or machine selected from a group
consisting of personal computer, super computer, network-is-the-computer,
personal digital assistant, smart-phone, robot, and website, comprising.
a) a memory,
b) a multi-media input-output,
c) an operating system,
d) a central processing unit,
e) a computational power or bandwidth,
f) a local and distributed object technology,
g} optionally connected to a grunt factory,
h) optionally connected to a world-wide web or a global
computer network environment, and
i) a plurality of peripherals;
b) wherein an improvement comprises a means for providing black-
box modernization user interface programming or overall interactive
environment modernization or upper-level user interface programming of
said computer, comprising:
a metaphor environment, comprising:
i. a handle for human or machine handling, usage or
adaptability as an extendedpersona, comprising:
1) a persona extender indicium, or a persona augmenter indicium for
representing, operating on, and transforming affordance state of said
computer into a persona extender, or persona augmenter affordance
state,
2) said indicium presented on or about said computer, on its
packaging or in said multi-media input-output or in marketing
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advertisements or in documentation in connection with said extended-
persona;
ii. an operating environment or ecosystem indicium for representing,
operating on, and transforming said operating system, which heretofore was
configured as a closed, self-thinking or autonomous operating system, into
an affordance of an operating environment or ecosystem,
wherein said ecosystem offers to said actor or said developer an
integration technology for integrating into said extended-persona a
plurality of objects, a plurality of other said extended-persona of other
actors, or a plurality of other systems, in conjunction with said local
and distributed object technology;
iii. a delegated processing unit indicium for representing, operating on, and
transforming heretofore affordance of said central processing unit Into an
affordance of a delegated processing unit,
wherein said actor or said developer can delegate a grunt work or low
level processing to said delegated processing unit;
iv. said handle consolidating said operating environment and said delegated
processing unit into said extended-persona;
forming a unit;
c) the unit working to complete a function of extending or augmenting said
actor's persona, whereby:
1. said metaphor environment in combination with said computer
performs a black-box modernization user interface programming step
of offering an affordance of said persona extender or said persona
augmenter to said actor;
2. said metaphor environment performs a function of restructuring or
reconfiguring the computer in relation to said actor as said extended-
persona for said actor, that heretofore was egalitarian, same level or
higher level in relation to said actor where said actor functioned in a
machinecentric or close to machine-centric paradigm, whereby, unlike
in traditional artificial intelligence, humans are brought into the
equation with a practical advantage of said actor being given a
headship who heretofore was merely a user so that said computer will
thenceforth be operated, steered and developed in time as a body
subservient and enslaved to said actor, inhibiting it from normally
being developed as a self-thinking and self-propelling sociopath or
unsafe system, while permitting safe incorporation within said
extended-persona, a range of other means, some of which
heretofore were self-thinking and self-propelling; .
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3. said metaphor environment with said headship assigned to the
actor, and with said grunt work, or low level processing, or boolean
logic processing delegated to said delegated processing unit, said
means for providing blackbox modernization of said computer
reassigns the computational powers or bandwidth of said computer
from itself to the extended-persona of the actor, wherein said
computer works under the headship and lordship of said actor,
producing said extended-persona with a high bandwidth, and
optionally, in conjunction with said grunt factory, said extended-
persona extended beyond said actor's physical self;
4. said extended-persona in conjunction with said optional global
computer network environment, extends said actor's persona
worldwide;
5. said metaphor environment performs a function of gaining
acceptance in society for a range of means, which are otherwise self-
thinking and self-propelling, to be incorporated in or integrated with
said extended-persona;
6. said metaphor environment in conjunction with said operating
environment or ecosystem having said integration technology
performs a function of producing seamless integration with said actor
while cutting a psychological barrier set by said group between
themselves and said actor so that said actor and said extended-persona
work together in a oneness;
7. said metaphor environment produces complementarity, rather than
replacing human agency, as low level work is processed by said
extended-persona, leaving strategic work to be processed by said actor
himself;
8. said metaphor environment enables efficient economic utilization
of resources, with said extended-persona apportioned resources
according to what said computer is capable of, leaving resources for
said actor, who alone is best capable of performing certain functions,
thus enabling the production of:
a. a synergy, wherein said computer and said actor operate
together in a hierarchical-complimentary or person-extender or
person-augmenter relationship, that is greater than said
computer and said actor heretofore working independent of
each other in an unresourceful arrangement of egalitarian
relationship, which is limited to a human-to-human
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communication paradigm with said computer that uses up
resources uneconomically;
b. a challenging synergy in a scenario where said computer
extends itself, using subservient humans;
d) said unit providing said actor:
1. said high bandwidth,
2. said oneness,
3. said synergy, and
4. said headship,
working to complete an overall function of intuitively enabling said actor to
better govern, administer, manage or direct a plurality of actors, or
manipulate said plurality of objects or systems, without the actor abdicating
power or losing control to the machine, all of which are optionally connected
to said global computer network environment.
RELATED APPEAL
Although Appellant refers to an appeal in connection with a trademark
registration associated with the claimed invention, Appellant cites no other
related appeals. Br. 6.
THE REJECTIONS
The Examiner rejected claims 27-29, 31-35, 37--42, and 44--46 under
35 U.S.C. § 112, first paragraph as failing to comply with the enablement
requirement. Ans. 3-16. 2
The Examiner rejected claims 27-29, 31-35, 37--42, and 44--46 under
35 U.S.C. § 112, second paragraph as indefinite. Ans. 17-18.
2 Throughout this opinion, we refer to ( 1) the Appeal Brief filed December
5, 2017 (supplemented February 9, 2018) ("Br."); and (2) the Examiner's
Answer mailed March 30, 2018 ("Ans.").
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The Examiner rejected claims 27-29, 31-35, 37--42, and 44--46 under
35 U.S.C. § 101 as directed to ineligible subject matter. Ans. 18-20.
THE ENABLEMENT REJECTION
The Examiner finds that the claims fail to comply with the enablement
requirement because they are replete with limitations that are said to be
abstract, subjective, and not described in the Specification to enable an
ordinarily skilled artisan to make and/or use the invention. Ans. 3-16. As
non-limiting examples of these abstract, subjective, and insufficiently-
described limitations, the Examiner cites, among other things, ( 1) seven
limitations in independent claim 27; (2) seven limitations in claim 28; (3)
one limitation in claim 29; ( 4) two limitations in claim 31; ( 5) three
limitations in claim 32; (6) six limitations in claim 33; (6) seven limitations
in claim 34; (7) eight limitations in claim 35; (8) two limitations in claim 37;
(9) three limitations in claim 3 8; (10) six limitations in claim 39; (11) seven
limitations from claim 40; (12) seven limitations from claim 41; (13) one
limitation from claim 42; (14) two limitations from claim 44; (15) three
limitations from claim 45; and ( 16) six limitations from claim 46. See id.
Appellant argues that the claimed invention is described sufficiently
to inform those skilled in the relevant art how to make and use the invention.
See Br. 29-65. According to Appellant, this relevant art is a combination of
16 different disciplines including, among other things, interactive system
design, artificial intelligence, political science, and Biblical theology. Br.
54.
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ISSUE
Has the Examiner erred in rejecting claims 27-29, 31-35, 37--42, and
44--46 under§ 112, first paragraph by finding that Appellant's disclosure
does not enable ordinarily skilled artisans to make or use the claimed
invention without undue experimentation?
ANALYSIS
Claims 27, 34, and 40
To determine whether Appellant's disclosure is enabled, the test is
whether ordinarily skilled artisans could make or use the invention from the
disclosure coupled with information known in the art without undue
experimentation. See United States v. Telectronics, Inc., 857 F .2d 778, 785
(Fed. Cir. 1988). Our emphasis underscores the fact that a disclosure may
be enabling despite the need for experimentation, so long as that
experimentation is not undue. See In re Angstadt, 537 F.2d 498, 504 (CCPA
197 6) ( emphasis added).
Determining whether any necessary experimentation is undue
involves considering many relevant factors including, but not limited to: (1)
the breadth of the claims; (2) the nature of the invention; (3) the state of the
prior art; ( 4) the level of one of ordinary skill; ( 5) the level of predictability
in the art; ( 6) the amount of direction provided by the inventor; (7) the
existence of working examples; and (8) the quantity of experimentation
needed to make or use the invention based on the content of the disclosure.
In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988).
Although this is a non-limiting list, all Wands factors need not be
reviewed, for they are illustrative-not mandatory. See Amgen, Inc. v.
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Chugai Pharm. Co., 927 F.2d 1200, 1213 (Fed. Cir. 1991); see also In re
Hillis, 484 Fed. App'x 491, 495 (Fed. Cir. 2012) (unpublished) ("Although
the examiner did not specifically cite the Wands factors, and the Board did
not expressly identify the factors upon which it relied, it is evident that both
the examiner's analysis and the Board's analysis were based on the factors
most relevant to this case .... ").
Turning to the rejection, the Examiner finds that independent claim 27
is replete with limitations that are said to be abstract, subjective, and not
described in the Specification to enable an ordinarily skilled artisan to make
and/or use the invention. Ans. 4--5, 20-29. As non-limiting examples of
these abstract, subjective, and insufficiently-described limitations, the
Examiner cites the following seven limitations from claim 27: (1) black box
modernization of a metaphor environment; (2) a first computer or machine
optionally connected to a "grunt factory"; (3) an ecosystem for integration
with an actor and other objects in a natural or built environment; (4)
extending persona limits including a human actor's cognitive and physical
powers; ( 5) a unit allowing the actor to govern, administer, manage, and
direct plural actors, or manipulate objects or systems, all of which are
optionally connected to a global computer environment; ( 6) extending the
actor's persona beyond "basic persona limits"; and (7) creating "oneness" by
the metaphor environment in conjunction with an operating environment or
ecosystem. Ans. 4--5.
Despite Appellant's arguments to the contrary (Br. 29--65), we see no
error in the Examiner's findings in this regard. Independent claim 27
recites, in pertinent part, a persona-extending-augmenting apparatus for at
least a first human actor or developer comprising a first computer or
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machine selected from the group consisting of (1) a personal computer; (2)
super computer; (3) network-is-the-computer; ( 4) personal digital assistant;
( 5) smart phone; ( 6) robot; and (7) website, where the first computer or
machine is, among other things, optionally connected to a "grunt factory."
Although the terms "grunt" and "grunt factory" are not defined in the
Specification, Appellant nevertheless contends that the term "grunt factory"
is simply a prior art factory incorporated into the invention that does "grunt
work" or low-level work. Br. 58 (citing Spec. 3--4, 22). 3 The
Specification's page 4 notes that personal robot technologies are trying to
imitate, among other things, "grunt work," and page 22 explains that certain
controls are delegated to an "Autonomic Digital Nervous System" to execute
grunt (factory) and automatic functions. But leaving aside the somewhat
pejorative connotation of the colloquial term "grunt" in this context, these
passages do not clarify precisely what such "grunt" work or functions entail,
let alone what a "grunt factory" would be, let alone enable ordinarily skilled
artisans to make or use such a factory, much less connect it to the first
computer or machine as claimed----optionally or otherwise.
To be sure, Appellant can be his own lexicographer, but any special
meaning assigned to a term "must be sufficiently clear in the specification
that any departure from common usage would be so understood by a person
3 Although Appellant refers to the Specification's line numbers (see, e.g., Br.
58), we nonetheless refer to the Specification's page numbers for clarity and
consistency with standard format. Because Appellant apparently refers to
the version of the Specification filed April 8, 2016--a substitute
Specification that was presumably entered by the Examiner in the Office
Action mailed June 27, 2016--we likewise refer to that version of the
Specification for clarity and consistency unless otherwise indicated.
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of experience in the field of the invention." Multiform Desiccants Inc. v.
Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see also Helmsderfer
v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008)
("A patentee may act as its own lexicographer and assign to a term a unique
definition that is different from its ordinary and customary meaning;
however, a patentee must clearly express that intent in the written
description.") ( citations omitted). In short, "[ w ]here an inventor chooses to
be his own lexicographer and to give terms uncommon meanings, he must
set out his uncommon definition in some manner within the patent
disclosure" to give ordinarily skilled artisans notice of the change. In re
Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). Accord MANUAL OF PATENT
EXAMINING PROCEDURE (MPEP) § 2111.01 (9th ed. Rev. 08.2017, Jan.
2018) (explaining when applicants can be their own lexicographer).
That has not been done here. Accordingly, we construe the term
"grunt" in the context of the claimed invention as a slang term meaning
"[ o ]ne who performs routine or mundane tasks." THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE 777 ( 4th ed. 2006). But even in
light of this definition, Appellant's Specification does not clarify exactly
what the recited "grunt factory" is-let alone enable ordinarily skilled
artisans to make or use such a factory, much less connect it to the first
computer or machine as claimed----optionally or otherwise.
We reach this conclusion even assuming, without deciding, that the
routine or mundane tasks associated with "grunt work" involve "low-level"
work as Appellant contends (Br. 58), and that ordinarily skilled artisans have
knowledge and experience in at least some of the fields listed by Appellant
on page 54 of the Brief. In short, such a vague description of "low-level"
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work presumably performed by the recited "grunt factory" falls well short of
describing this element with the requisite clarity and specificity to enable
ordinarily skilled artisans to make or use the recited "grunt factory" that is
optionally connected to the first computer or machine as claimed without
undue experimentation.
We reach the same conclusion regarding the recited "black box
modernization" of a metaphor environment. According to Appellant, the
term "black box" means "a device, process, or system, whose inputs and
relationships between them are known, but whose internal structure or
working is (1) not well, or at all, understood [and] (2) not necessary to be
understood for the job or purpose at hand." Br. 36 ( citing dictionary
definition with original emphasis deleted and our emphasis added). See also
Br. 38, 57 (reiterating this definition). Based on this definition, Appellant
contends that a "black-box modernization" is a reconfiguration of that black
box without having to understand its internal structure or working. See Br.
36, 38, 57.
Our emphasis underscores that the fact that the internal structure or
working of a key element of the claimed invention, namely the recited
"modernization," is not understood is the very antithesis of enablement,
which requires that the disclosure enable ordinarily skilled artisans to make
or use the claimed invention without undue experimentation. See
Telectronics, 857 F.2d at 785. To the extent that Appellant contends
otherwise, there is no persuasive evidence on this record to substantiate such
a contention. Given this lack of understanding regarding the recited
modernization, as well as the minimal direction, unpredictability, and lack of
working examples in this regard, the requisite amount of experimentation to
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achieve the claimed invention would, at a minimum, be quite high-indeed,
undue. See Wands, 858 F.2d at 737. Accord Ans. 27-29 (noting this point).
Claim 27 further recites a "metaphor environment" comprising four
main elements. First, the metaphor environment includes a "handle" for
human or machine handling, usage, or adaptability as an extended persona.
According to the claim, the handle comprises a persona extender indicium or
persona augmenter indicium for representing, operating on, and
transforming a computer's affordance state into that of a persona extender or
augmenter, the indicium presented (a) on or about the computer; (b) on its
packaging; (c) in multi-media input-output; (d) in marketing advertisements;
or ( e) in documentation in connection with the extended persona.
The recited metaphor environment also includes (1) an operating
environment or ecosystem indicium for representing, operating on, and
transforming the operating system into an aff ordance of an operating
environment or ecosystem; and (2) a delegated processing unit indicium for
representing, operating on, and transforming the affordance of a central
processing unit into an affordance of a delegated processing unit. The claim
adds that the handle consolidates the operating environment and delegated
processing unit into an extended persona.
A key aspect of item ( 1) of the metaphor environment above is that
the ecosystem offers to the actor or developer an integration technology for
integrating into the extended persona objects, other actors' extended
persona, or other systems in conjunction with local and distributed object
technology. The Examiner finds, and we agree, that the Specification does
not explain sufficiently how this object integration is accomplished to enable
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ordinarily skilled artisans to make or use this element without undue
experimentation. See Ans. 4.
Appellant's reliance on the discussion beginning at line 614 on page
14 of the Specification (Br. 41--42) is unavailing. According to Appellant,
the recited ecosystem corresponds to an operating environment, and that
local and distributed object technology is known in the art. Br. 41. The
Specification notes that distributed object technology and its middleware
provide the necessary integration technique for collating/integrating the
environment elementally, while the browser and web provide the necessary
extension technology. Spec. 14. With this functionality, a "Global Necktie-
imitating Persona-Extender/Environment-Integrator is said to be provided.
Id. In other words, the Specification explains, a Global Cyborg (machine-
man) can be realized and manifested because the Necktie-imitating Persona-
Extender/Environment-Integrator metaphor environment "wraps" the newly-
assembled system with new and unexpected concepts as enumerated in the
Advantages of the "Necktie"/ "Fine-Linen Clothes." Id. On page 41 of the
Brief, Appellant illustrates the extended persona integration shown below:
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Extended-Persona Integration Shown on page 41 of Appellant's Brief
Leaving aside the fact that this figure does not appear in Appellant's
application disclosure, and even assuming, without deciding, that "local and
distributed object technology" is known in the art as Appellant contends (Br.
41, 59---60), we nonetheless agree with the Examiner that the Specification
fails to explain sufficiently how this object integration is accomplished to
enable ordinarily skilled artisans to make or use this element without undue
experimentation. See Ans. 4.
Despite Appellant's arguments to the contrary (Br. 62-65), we also
agree with the Examiner that the Specification fails to enable ordinarily
skilled artisans to make or use the recited unit that provides the actor with
(1) high bandwidth; (2) "oneness"; (3) synergy; and (4) "headship" that
work to complete an overall function of intuitively enabling the actor to
govern, administer, manage, and direct plural actors, or manipulate objects
or systems, all of which are optionally connected to a global computer
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environment, where the actor does not abdicate power or lose control to the
machine. See Ans. 4.
Although Appellant contends that the Specification enables those
skilled in "Bio-inspired Design" and "Governance" to make and/or use these
elements (Br. 63), there is no persuasive evidence on this record to
substantiate such a contention. Given the Specification's vague descriptions,
as well as the minimal direction, unpredictability, and lack of working
examples in this regard, the requisite amount of experimentation to achieve
the claimed invention would, at a minimum, be quite high-indeed, undue.
See Wands, 858 F.2d at 737.
We reach this conclusion despite Appellant's contention that the
recited "oneness" is seen "through a single head, the headship of which is
offered to the actor by the Personal Extender metaphor user interface" that,
according to Appellant, extends out from the user rather than substituting for
the user. Br. 64. In the latter case, there is said to be no "oneness" because
there are multiple heads. Id. See also Spec. 32 (noting that "oneness" is
seen only through a visible and single Head); Br. 61 (noting that through the
'oneness' and 'headship' provided to the Persona Extender affordance,
computational power or bandwidth is reassigned to the actor "surpassing the
limits to self'). Although this cranial singularity is apparently a significant
aspect of the claimed invention, the Specification nevertheless does not
enable ordinarily skilled artisans to make or use the recited unit, let alone a
unit that provides the actor with at least the recited "oneness" and
"headship" enabling the actor to govern, administer, manage, and direct
plural actors, or manipulate objects or systems, all of which are optionally
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connected to a global computer environment, where the actor does not
abdicate power or lose control to the machine as claimed.
In short, we agree with the Examiner that Appellant's disclosure falls
well short of describing the invention with the requisite clarity and
specificity to enable ordinarily skilled artisans to make or use the claimed
invention without undue experimentation.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 27 as failing to comply with the enablement requirement, 4 and claims
34 and 40 not argued separately with particularity.
Claims 28, 35, and 41
We also sustain the Examiner's enablement rejection of claim 28. In
the rejection, the Examiner finds that claim 28 is replete with limitations that
are said to be abstract, subjective, and not described in the Specification to
enable an ordinarily skilled artisan to make and/or use the invention. Ans.
5---6, 29--31. As non-limiting examples of these abstract, subjective, and
4 Appellant also notes that to satisfy the written description requirement of
the first paragraph of§ 112, a disclosure need only describe the claimed
invention in a manner to sufficient to reasonably convey to ordinarily skilled
artisans that Appellant possessed the invention. Br. 55. The Examiner's
rejection, however, is not based on the written description requirement of
§ 112, first paragraph, but rather its enablement requirement-a separate and
distinct inquiry under the statute. See Ariad Pharms., Inc. v. Eli Lilly & Co.,
598 F.3d 1336, 1344 (Fed. Cir. 2010) (en bane). Therefore, to the extent
that Appellant contends that the Examiner erred by finding lack of
possession in connection with the written description requirement of§ 112
(see Br. 55, 65), such arguments are inapposite to the Examiner's rejection
that is based solely on lack of enablement. Similar considerations apply for
possession-based arguments made in connection with other claims. See,
e.g., Br. 84, 90, 93, 107.
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insufficiently-described limitations, the Examiner cites the following seven
limitations from claim 28: (1) a necktie metaphor environment comprising
integration technology for integrating objects into extended personas; (2) a
heterogenous membership's indicia imitating a human body's heterogenous
membership of organs or a similar body's heterogenous membership for
representing and operating on plural objects; (3) a "seven plus or minus two"
information flow; ( 4) a necked persona; ( 5) processing information of at
most "seven plus or minus two" units of hard or soft information or
heuristics or advice or insight, keeping in view the actor's limited capacity
for processing information; (6) an "eThrone" at the neck's cross-section for
representing the operating environment; and (7) an "actor-headed"
environment. Ans. 5-6.
Despite Appellant's arguments to the contrary (Br. 65-100), we see
no error in the Examiner's findings in this regard. First, we agree with the
Examiner that Appellant's disclosure falls well short of describing the
recited necktie metaphor environment comprising integration technology for
integrating objects into an extended persona with the requisite clarity and
specificity to enable ordinarily skilled artisans to make or use this element
for the reasons noted previously and those indicated by the Examiner. See
Ans. 5.
We reach the same conclusion regarding the recited "handles"
comprising a heterogenous membership's indicia imitating a human body's
heterogenous membership of organs or a similar body's heterogenous
membership for representing and operating on plural objects. Although
Appellant cites the passage beginning at line 1068 on page 25 of the
Specification as enabling this element (see Br. 67----69), we find that this
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passage falls well short in this regard. In describing the advantages of the
"Necktie-imitating Persona-Extender/Environment-Integrator," the
Specification notes that it integrates or incorporates all heterogeneous
members (metaphor objects) associated with a "corporate body/bride" and
"marr[ies] her to the head" by first adorning with "Clean-linen clothing"
( wrapping by encapsulation-Black-box modernization technique) the
members with "good works," the Individual ( organism) and the Machine
(Cybernetics) into one whole, called "Cyborg," together with an Augmented
Persona. Spec. 25. The Specification's page 25 adds that the "Necktie" not
only marries (interfaces) the rightful users with their superiors and
subordinates (including objects in the natural, built, and social environment)
but also manifests the whole by "tying" them ( or marrying them) while
maintaining the scope of the incorporation to desirable objects through
"human component intervention," yet subjecting the rest to "the
conglomerate/nation" through each member's vested capacity, authority, or
powers.
Given the Specification's vague descriptions, as well as the minimal
direction, unpredictability, and lack of working examples in this regard, the
requisite amount of experimentation to achieve the claimed invention would,
at a minimum, be quite high-indeed, undue. See Wands, 858 F.2d at 737.
Therefore, we agree with the Examiner that Appellant's disclosure falls well
short of describing the recited "handles" comprising a heterogenous
membership's indicia imitating a human body's heterogenous membership
of organs or a similar body's heterogenous membership for representing and
operating on plural objects with the requisite clarity and specificity to enable
ordinarily skilled artisans to make or use this element. See Ans. 5, 29.
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We reach the same conclusion regarding the recited processing
information of at most "seven plus or minus two" units of hard or soft
information or heuristics or advice or insight from an information flow of n-
entropy, keeping in view the actor's limited capacity for processing
information in the actor's working memory. See Ans. 6, 29-30. Although
Appellant cites (1) two non-patent documents, including one entitled "The
Magical Number 7 ± 2: Some Limits on our Capacity for Processing
Information"; (2) a definition of "bandwidth" as the mental capacity
required to deal with a situation; and (3) various passages from the
Specification (Br. 69-84), we nevertheless find that the disclosure falls well
short of enabling the limitation even when considered in light of these
citations.
That is, even if we were to accept Appellant's apparent premise that
because the human mind's capacity is limited, delegating low-level
processing to a machine is beneficial so that the human mind can be used for
other purposes, such as to make strategic decisions (see Br. 70-72; Spec. 3,
21 ), ordinarily skilled artisans would still have to experiment unduly to
make or use the claimed invention given the Specification's vague
descriptions, as well as the minimal direction, unpredictability, and lack of
working examples in this regard. See Wands, 858 F.2d at 737. Therefore,
we agree with the Examiner that Appellant's disclosure falls well short of
describing the recited processing information of at most "seven plus or
minus two" units of hard or soft information or heuristics or advice or
insight from an information flow of n-entropy, keeping in view the actor's
limited capacity for processing information in the actor's working memory
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with the requisite clarity and specificity to enable ordinarily skilled artisans
to make or use this element. See Ans. 5, 29--30.
We reach the same conclusion regarding the recited "necked" persona.
Although Appellant cites Figures IA to ID and the passage beginning at line
1159 on page 27 of the Specification as enabling this element (see Br. 85-
92), we find that this disclosure falls well short in this regard. According to
Appellant, Figure IB shows the "Super Apostle Space" that is said to be the
"neck," where the "neck" qualifies the "Network-is-the-Computer." See Br.
86. The Specification's page 27 notes an advantage of the disclosed
"Necktie-imitating Persona-Extender/Environment-Integrator" in
combination with the necked "Network-is-the-Super-Computer," which
serves as the peripheral nervous system to virtually augment each member's
real environment, the cross-section at the neck, namely the "Bridal Metaphor
Environment Governing System" 5B shown in Figure 1 A. This disclosure is
said to serve as a "command/Information distribution/collaboration
channel/environment to/with the various members of the body." Spec. 27.
According to Appellant, the term "necked" has both global and local
contexts in connection with the disclosed invention. See Br. 86-90. In the
global context, Appellant notes that the term "necked" is found in the global
context of "Christocratic NECKED Service Oriented Architecture
(CNSOA), which is the full-blown version of the Persona and named the
Wedded Avatar of Christ." Br. 86 (bolding and underlining omitted).
Appellant adds that "[t]he 'neck' is the basic unit, which is built upward and
downward as the claims narrow." Br. 86. This "neck" -based unit is said to
be shown in (1) Figure IA where elements branch out from the center or
"neck"; (2) in the extrapolated form or "macrocosm" of Figure IB, where a
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"necked" extended persona is the basic building block; (3) in Figure ID,
where the cross-sectional bottom view shows branching out from the center
or "neck"; and (4) in Figure IC, that is said to show, in extrapolated form,
the "necktie" having bottlenecked and extended persona in operation to form
"necked" extended persona. Br. 86-88. Appellant adds that, in a local
context, the term "necked" is synonymous with a "throttled" system, such
that the actor is presented "seven plus or minus two" units. Br. 88-89. But
see Br. 98 ( equating the neck to the "eThrone").
Given the Specification's vague descriptions, as well as the minimal
direction, unpredictability, and lack of working examples in this regard, the
requisite amount of experimentation to achieve the claimed invention would,
at a minimum, be quite high-indeed, undue. See Wands, 858 F.2d at 737.
Therefore, we agree with the Examiner that Appellant's disclosure falls well
short of describing the recited necked persona with the requisite clarity and
specificity to enable ordinarily skilled artisans to make or use this element.
See Ans. 5.
We reach the same conclusion regarding the recited "eThrone" at the
neck's cross-section for representing an operating environment. According
to Appellant, line 7 60 on the Specification's page 1 7 shows that an
"eThrone" is for governance. Although that passage indicates that the
"[n]eck 5A corresponds to Super-Apostle's-space, eThrone or Govemor-
space," and page 6, lines 245 and 246 refer to a "Bridal Metaphor
Environment Control System" or "eThrone" that is used at the cross-section
of a Body's "neck," these relied-upon passages does not clarify the term
"eThrone" to enable ordinarily skilled artisans to make or use that element.
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Given the Specification's vague descriptions, as well as the minimal
direction, unpredictability, and lack of working examples in this regard, the
requisite amount of experimentation to achieve the claimed invention would,
at a minimum, be quite high-indeed, undue. See Wands, 858 F.2d at 737.
Therefore, we agree with the Examiner that Appellant's disclosure falls well
short of describing the recited "handles" comprising a heterogenous
membership's indicia imitating a human body's heterogenous membership
of organs or a similar body's heterogenous membership for representing and
operating on plural objects with the requisite clarity and specificity to enable
ordinarily skilled artisans to make or use this element. See Ans. 6, 31.
We reach the same conclusion regarding the recited "actor-headed
environment." The last clause of claim 2 8 recites, in pertinent part,
"enabling said actor to stay in the flow of learning and using said necked
extended-persona, something that is below said actor's head." The clause
adds that the "actor is enabled to learn an actor-headed environment,
wherein said actor can be seated on said eThrone of said neck as said head-
on-the-neck and said necked extended persona does said grunt work
delegated by said actor."
According to Appellant, "actor-headed" environments enable the actor
to exercise authority non-invasively. Br. 98. Appellant reasons that because
a human head is seated on the neck, the neck is also the "eThrone," and
because multimedia is configured as a neck, the actor virtually seated on it
"becomes obviously the head, whereby the ecosystem becomes an actor-
headed ecosystem." Id. Appellant also cites the passage beginning at line
368 of the Specification's page 9 in connection with the actor-headed
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environment's non-invasive application, where the "self or brain can also
extend out of the skin, whereby it can exercise control non-invasively."
Although the Specification's pages 9 and 10 distinguish the term
"Meatspace" and "Cyberspace," and note in connection with Cyberspace
that the machine can be perceived as an "Extender of self," these relied-upon
passages do not clarify the term "eThrone" to enable ordinarily skilled
artisans to make or use that element.
Given the Specification's vague descriptions, as well as the minimal
direction, unpredictability, and lack of working examples in this regard, the
requisite amount of experimentation to achieve the claimed invention would,
at a minimum, be quite high-indeed, undue. See Wands, 858 F.2d at 737.
Therefore, we agree with the Examiner that Appellant's disclosure falls well
short of describing the recited "actor-headed environment" with the requisite
clarity and specificity to enable ordinarily skilled artisans to make or use this
element without undue experimentation. See Ans. 6, 31.
Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 28 as failing to comply with the enablement requirement, and
claims 35 and 41 not argued separately with particularity.
Claims 29 and 42
We also sustain the Examiner's enablement rejection of claim 29.
Claim 29 depends from claim 28 and adds that the necktie metaphor
environment further comprises a mental prosthesis indicium, where the
necked extended persona is disposed as a mental prosthesis affordance,
forming a unit, where the unit works to complete a function of virtually
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restoring or rehabilitating the actor to an "original perfect state" having
heretofore missing front spinal column.
In the rejection, the Examiner finds that claim 29 is replete with
limitations that are said to be abstract, subjective, and not described in the
Specification to enable an ordinarily skilled artisan to make and/or use the
invention. Ans. 5---6, 29--31. As a non-limiting example of these abstract,
subjective, and insufficiently-described limitations, the Examiner finds that
the recited "mental prosthesis indicium" is not defined or described in a way
that allows ordinarily skilled artisans to be able to make or use the invention.
Ans. 6, 31-32.
According to Appellant, given the plain meaning of the term
"indicium," namely "[s]ign, indication, or distinguishing mark," the claim
effectively recites a non-invasive mental prosthesis affordance obviating the
need any "macho-invasive" implementation. Br. 101. This non-invasive
mental prosthesis affordance is said to be supported sufficiently in the
Specification to enable those skilled in arts of interactive system design,
cognitive psychology, and "bioinspired" design to make and/or use the
invention. Id.
According to page 11 of the Specification, "[t]he Necktie-Imitating
Persona-Extender/Environment-Integrator purports to be a Mental-
Prosthesis, which can enable him to plug into the any part of the natural or
built environment and take control of that module." The Specification adds
that "[a]s the 'Necktie' takes the place of the missing part in the perfect body
of a human, namely the Front Spinal column and begins to subdue/control
modules in the environment under the headship of Christ, it is seen as a
harmonious cooperation with God .... " Spec. 11.
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Although this passage characterizes Necktie-Imitating Persona-
Extender/Environment-Integrator as a mental prosthesis, this and other
passages do not clarify the recited "mental prosthesis indicium" to enable
ordinarily skilled artisans to make or use that element.
Given the Specification's vague descriptions, as well as the minimal
direction, unpredictability, and lack of working examples in this regard, the
requisite amount of experimentation to achieve the claimed invention would,
at a minimum, be quite high-indeed, undue. See Wands, 858 F.2d at 737.
Therefore, we agree with the Examiner that Appellant's disclosure falls well
short of describing the recited "mental prosthesis indicium" with the
requisite clarity and specificity to enable ordinarily skilled artisans to make
or use this element without undue experimentation. See Ans. 6, 31-32.
Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 29 as failing to comply with the enablement requirement, and
claim 42 not argued separately with particularity.
Claims 31, 37, and 44
We also sustain the Examiner's enablement rejection of claim 31. In
the rejection, the Examiner finds that claim 31 is replete with limitations that
are said to be abstract, subjective, and not described in the Specification to
enable an ordinarily skilled artisan to make and/or use the invention. Ans. 6,
32-33. As non-limiting examples of these abstract, subjective, and
insufficiently-described limitations, the Examiner cites the following
limitations from claim 31: (1) a "laborspace," and (2) a "meatspace"
integrated with cyberspace. Id.
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According to Appellant, the term "laborspace" is an affordance that
encapsulates all kinds of goods and services, and its use in the context of the
claimed invention includes features that integrate and augment "meatspace"
with cyberspace as described on pages 9 and 10 of the Specification,
beginning at line 368 and Figure 2. Br. 102---05. Appellant adds that the
passage on page 14, beginning at line 585, shows how "laborspace" is made.
Br. 105---06.
According to the Specification's page 14, Figure 2 shows "Necktie"
apparatuses consisting of (1) a pocket data processing device 18 working as
a Delegated Processing Unit connected to a global network with
handwriting, speech, gesture and image synthesizing/processing software;
(2) an optional camera 10 on the forehead; (3) an optional ear-phone 16 with
microphone 14; and (4) an optional projector 12. As shown in Figure 2,
"Cyberspace" 21 is superimposed over "Meatspace" 20 in multi-media,
resulting in "augmented Meatspace of persona or Laborspace of goods and
services." Spec. 14.
According to page 8 of the Specification, Appellant's Figure 2,
reproduced below, shows a diagram of a scenario where the Proximity
"Meatspace" and "Cyberspace" of three collaborating members are
integrated and augmented using their Necktie-imitating Personal
Extender/Environment-Integrator Metaphor Environments.
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.~, . .:.......,...,,,,
~Y! .. ·.· \\\·
. . ' ~ .·. . '
'·
Appellant's Figure 2 showing integrating and augmenting proximity
"Meatspace" and "Cyberspace" using their Necktie-imitating Personal
Extender/Environment-Integrator Metaphor Environments
According to the Specification's page 14, the invention "cognitively
represents an Extender of the Self through the Necktie Imitation and results
in a high bandwidth interaction for those who need to learn and member the
Body with a Christocratic Necked Service Oriented Architecture .... "
Although these passages apparently pertain to the invention's ability
to somehow integrate and augment "meatspace" and "cyberspace," and the
Specification distinguishes the invention from "Red Hat" on page 6,
beginning at line 226, and whose architecture applies to goods and services
as noted on the Specification's page 10, beginning at line 421 as Appellant
indicates (Br. 106), these and other passages do not clarify the recited
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"laborspace" functionality to enable ordinarily skilled artisans to make or
use that element.
We reach the same conclusion regarding the recited
meatspace"/"cyberspace" integration functionality despite Appellant's
arguments to the contrary and reliance on various passages that are said to
enable this functionality. See Br. 108-16. On page 16, the Specification
notes that the necktie can be used to "integrate by standard Object Oriented
Analysis and Design techniques and order by ranking, one member with
another member or a plurality of members 'in' a third member of the body
into the already wrapped-up (with Clean-linen clothing) initial
Subscription/ Accentor-space." The Specification's page 27 also notes that
the invention "lends the environment gracefully to object oriented principles
such as abstraction, encapsulation ( wrapping), inheritance, and
polymorphism."
The Specification's page 20 describes the operation of a "Necktie-
imitating Persona-Extender/Environment-Integrator" to augment an
individual's persona. This passage describes an embodiment "using
common Computer Vision techniques, which are available in the open
source." Spec. 20. In this embodiment, a "camera, which may be placed as
portable headgear or otherwise conveniently on the body, recognizes all
what we see with our naked eye as well as Cues." Id. These "Cues" are
provided via "encoded tags, placed on user's fingers or in the user's
proximity with respect to: for instance 1) 'Pointing,' with the index finger
tag; 2) 'Grabbing,' with two fingers' tags; 3) 'Capturing,' with four fingers'
tags, objects real or virtual." Id.
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According to this embodiment, "[t]he software program processes the
video stream data captured by the camera and tracks the locations of the
colored markers in N-Space with respect to the Camera location." Id. As
the Specification explains, "[t]he movements and arrangements of a set of
tags are interpreted as specific encoded sign language that act as interaction
instructions for a mini Projector (which may also be placed on the body or
otherwise) to project visual information from Cyberspace on surfaces in
User's Proximity Meatspace." Id. For example, this projection can be "on a
book that [the individual] is reading or on a wall in front of him or even on
other representations of his Meatspace remotely held on other
displays/holograms." Id.
The Specification further explains that "[ t ]he processing of the
Extender itself may be done in a handheld electronic data processor. Thus
the User's Proximity Meatspace is layered with pertinent 'smart' Cyberspace
and thereby it is augmented." Id. The Specification adds that Cues can be
other media as well, including Audio. Id. In this implementation, the data
processor "picks up" whatever is spoken, and "'smart' cyber-audio is
generated for the User." Id.
Although this embodiment apparently uses at least some real-world
devices, such as a camera, projector, and data processor, it is nevertheless
unclear on this record exactly how ordinarily skilled artisans could make and
use the claimed invention to achieve the recited functionality without undue
experimentation even in light of this disclosure. To the extent that Appellant
contends that this embodiment reflects a working example of the claimed
invention, the Specification falls well short in this regard, particularly given
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the undue experimentation required for ordinarily skilled artisans to make or
use the invention reflected in the above-noted embodiment or otherwise.
Given the Specification's vague descriptions, as well as the minimal
direction, unpredictability, and lack of working examples in this regard, the
requisite amount of experimentation to achieve the claimed invention would,
at a minimum, be quite high-indeed, undue. See Wands, 858 F.2d at 737.
Therefore, we agree with the Examiner that Appellant's disclosure falls well
short of describing the recited "laborspace" and "meatspace"/"cyberspace"
integration functionality with the requisite clarity and specificity to enable
ordinarily skilled artisans to make or use these elements without undue
experimentation. See Ans. 6, 32-33.
Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 31 as failing to comply with the enablement requirement, and
claims 37 and 44 not argued separately with particularity.
Claims 32, 38, and 45
We also sustain the Examiner's enablement rejection of claim 32. In
the rejection, the Examiner finds that claim 32 is replete with limitations that
are said to be abstract, subjective, and not described in the Specification to
enable an ordinarily skilled artisan to make and/or use the invention. Ans.
6-7, 33-34. As non-limiting examples of these abstract, subjective, and
insufficiently-described limitations, the Examiner cites the following
limitations from claim 32: (1) the actor with an extended and augmented
persona via an avatar can immersively inhabit the laborspace "B"; (2)
integrating environmental objects or systems into laborspace "B"; and (3) a
unit that allows an actor to govern, administer, manage, and direct a second
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actor(s), and manipulate in an ecosystem of objects and systems connected
to a global computer network environment. Id.
According to Appellant, the example on the Specification's page 21,
beginning at line 943, shows how five laborspaces are integrated with
respect to an example involving a neurosurgeon in the United States and a
neurologist in the United Kingdom. Br. 117-21. In this example, the UK-
based neurologist (1) uses his "Necktie-imitating Neurologist's-
Extender/Neurology-domain-integrator" to diagnose remotely a patient in
India, and (2) sends a diagnostic report to the neurosurgeon in the United
States. Spec. 21. The U.S. neurosurgeon then operates on the patient "with
his surgical enterprise extended and augmented by Neurosurgeon's Necktie
Extender/Environment-integrator." Id.
Although this example conveys the potential benefits that could be
realized by the invention, this description nonetheless falls well short of
explaining exactly how ordinarily skilled artisans could make or use the
claimed invention to achieve these potential results, particularly given the
undue experimentation required in that regard. Although using the claimed
invention to facilitate global tele-surgery is certainly laudable and potentially
beneficial, ordinarily skilled artisans would nevertheless have to, at a
minimum, experiment unduly to make or use the claimed invention to
achieve these aspirations given the present disclosure.
Given the Specification's vague descriptions, as well as the minimal
direction, unpredictability, and lack of working examples in this regard, the
requisite amount of experimentation to achieve the claimed invention would,
at a minimum, be quite high-indeed, undue. See Wands, 858 F.2d at 737.
Therefore, we agree with the Examiner that Appellant's disclosure falls well
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short of describing the recited ( 1) actor with an extended and augmented
persona via an avatar can immersively inhabit the laborspace "B"; (2)
integrating environmental objects or systems into laborspace "B"; and (3)
unit that allows an actor to govern, administer, manage, and direct a second
actor(s), and manipulate in an ecosystem of objects and systems connected
to a global computer network environment with the requisite clarity and
specificity to enable ordinarily skilled artisans to make or use these elements
without undue experimentation. See Ans. 6, 33-34.
Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 32 as failing to comply with the enablement requirement, and
claims 38 and 45 not argued separately with particularity.
Claims 33, 39, and 46
We also sustain the Examiner's enablement rejection of claim 33. In
the rejection, the Examiner finds that claim 33 is replete with limitations that
are said to be abstract, subjective, and not described in the Specification to
enable an ordinarily skilled artisan to make and/or use the invention. Ans.
7-8, 34--37. As non-limiting examples of these abstract, subjective, and
insufficiently-described limitations, the Examiner cites the following
limitations from claim 33: (1) a "wedded-avatar" or "pan-environment
wedded-corporate-avatar" or a "gross-save-ecosystem" for regulating and
handling n-entropy of global anarchy for world governance and gross
salvation; (2) greatest born of woman actor; (3) a first position of a god, a
second position of a Christ or super apostle, a third position of men, and a
fourth position of women; ( 4) ranking according to first apostles, second
prophets, third teachers, fourth miracles, fifth healings, sixth helping,
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seventh guidance, and eight different kinds of tongues; ( 5) twelve or
substantial number of ruling actors from the east and another twelve or
substantial number of ruling actors from the west; and ( 6) a decussation of
the left and right flanks of an inverted pyramid. Ans. 7-8, 34--37.
According to Appellant, limitation (1) above is said to be supported
by the Specification at (a) page 9, beginning at line 366, which describes a
mode entitled "Christocratic Global Governance with eThrone by Super-
augmenting Persona," and (b) page 19, beginning at 848, describing "Super-
Augmenting Persona on eThrone 5A shown in Fig. IA through the
Bridespace & Bridal Metaphor Environment Control System 5B shown in
Fig. IA." Br. 124--25. Appellant also refers to the Specification's page 8,
beginning at line 344, page 12, beginning at line 508, and page 30,
beginning at line 1298, for various teachings in connection with number of
persons associated with a "Bridespace," namely 144,000, as enabling
limitation (1 ). See Br. 126-27.
Regarding limitation (2) above, Appellant contends that "a greatest
born of woman actor" is "the greatest among those who merely had a natural
birth and has been elected as the greatest (Prime Minister/President) through
prior-art democratic means to take his designated position-6 shown in Fig.
IC in the Christocatic-space or upright-pyramid of the Christocratic Necked
Service Oriented Architecture or Christocratic New World Order." Br. 137-
38.
As for limitations (3) and ( 4) above, Appellant refers to the
Specification's page 13, beginning with line 560, and, in particular, its
references to 1 Corinthians 11:13 and 12:28 of the Bible, as support for
enabling these limitations. Br. 138--42. In addition, limitation (5) above is
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said to be supported by (a) the Specification's page 8, beginning with line
328, and, in particular, the Bridal Metaphor Environment Governing System
with 12 "e Thrones,"; (b) the Specification's page 13, beginning with line
556 and its description of the Bridal Metaphor Environment Control System
and 12 apostles; (c) the Specification's page 18, beginning with line 821,
discussing the two halves of the Bottom Pyramid and their associated
Christocratic spaces; and (d) Figure IA. Br. 143--45. Regarding limitation
( 6) above, Appellant refers to the passage associated with the title
"Decussating the Pyramids" on the Specification's page 18, beginning at line
782, as enabling this limitation. Br. 150-51.
Although these relied-upon passages discuss various aspects that are
tangentially related to the claimed subject matter, ordinarily skilled artisans
would nevertheless have to, at a minimum, experiment unduly to make or
use the claimed invention to make or use the claimed invention given the
present disclosure.
Given the Specification's vague descriptions, as well as the minimal
direction, unpredictability, and lack of working examples in this regard, the
requisite amount of experimentation to achieve the claimed invention would,
at a minimum, be quite high-indeed, undue. See Wands, 858 F.2d at 737.
Therefore, we agree with the Examiner that Appellant's disclosure falls well
short of describing the recited (1) "wedded-avatar" or "pan-environment
wedded-corporate-avatar" or a "gross-save-ecosystem" for regulating and
handling n-entropy of global anarchy for world governance and gross
salvation; (2) greatest born of woman actor; (3) a first position of a god, a
second position of a Christ or super apostle, a third position of men, and a
fourth position of women; ( 4) ranking according to first apostles, second
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prophets, third teachers, fourth miracles, fifth healings, sixth helping,
seventh guidance, and eight different kinds of tongues; ( 5) twelve or
substantial number of ruling actors from the east and another twelve or
substantial number of ruling actors from the west; and ( 6) a decussation of
the left and right flanks of an inverted pyramid with the requisite clarity and
specificity to enable ordinarily skilled artisans to make or use these elements
in the context of the claimed invention without undue experimentation. See
Ans. 7-8, 34--37.
Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 33 as failing to comply with the enablement requirement, and
claims 39 and 46 not argued separately with particularity.
THE INDEFINITENESS REJECTION
The Examiner finds that the claims fail to define the invention under
§ 112, second paragraph because they are narrative in form and replete with
indefinite language. Ans. 17. As non-limiting examples of these indefinite
limitations, the Examiner cites the recited ranking personae according to 1
Corinthians 11 :3 and 12:28 in claims 33, 39, and 46 as unclear regarding
how these passages correspond to the claimed avatar ranking. Ans. 17-18.
Appellant acknowledges that although the limitations pertaining to
avatar ranking are "superfluous" and can be removed via amendment,
Appellant nonetheless contends that the "bio-inspired design of
'Corporation' as we know it, comprising head and members-of-the-body,
was invented by Apostle Paul, as mentioned in 1 Corinthians 12:28 and 1
Corinthians 11:3." Br. 152. According to Appellant, this subject matter is
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not only supported in the cited prior art, but also described in four passages
of the Specification. Id.
ISSUE
Has the Examiner erred in rejecting claims 27-29, 31-35, 37--42, and
44--46 under§ 112, second paragraph by finding that the recited
limitations-including those pertaining to ranking personae according to 1
Corinthians 11 :3 and 12:28 in claims 33, 39, and 46--render the claims
indefinite?
ANALYSIS
We begin by noting a key acknowledgement by Appellant in
connection with the Examiner's indefiniteness rejection. Notably, Appellant
concedes that the limitations pertaining to avatar ranking are "superfluous"
and can be removed by amendment. Br. 152.
Nevertheless, we see no error in the Examiner's indefiniteness
rejection. Ans. 17-18, 37. Although the Examiner finds that ranking
personae according to 1 Corinthians 11 :3 and 12:28 in claims 33, 39, and 46
is unclear regarding how these passages correspond to the claimed avatar
ranking, the Examiner emphasizes that these particular limitations are
merely non-limiting examples of the claims' indefinite limitations. Ans. 17.
In other words, the specific limitations in claims 33, 39, and 46 cited by the
Examiner are just a few examples of indefinite language in all claims, and
these three examples are not a complete listing of language in the claims that
renders them unclear and indefinite under § 112, second paragraph. See id.
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On this record, we agree with the Examiner that the claims are replete
with language that renders them vague and indefinite-including the three
non-limiting examples cited by the Examiner. See Ans. 17-18. Although
the passages in the Specification's (1) page 6, beginning at line 237; (2) page
13, beginning line 560; (3) page 17, beginning at line 725; and (4) page 29,
beginning at line 1279 cited by Appellant (Br. 152) seem to refer to an order
that is ostensibly consistent with one referenced in the Bible, these citations
fall well short of clarifying the recited raking limitations as they pertain to
the claimed invention, particularly ranking avatars, as the Examiner
indicates. See Ans. 17-18. Regardless of the apparent Biblical
underpinnings of the recited ranking scheme, the claims as a whole are
nonetheless replete with language that renders them unclear and, therefore,
indefinite.
Claims must "particularly point[] out and distinctly claim[] the subject
matter which the applicant regards as his invention." 35 U.S.C. § 112, ,r 2.
The test for definiteness under 35 U.S.C. § 112, second paragraph, is
whether "those skilled in the art would understand what is claimed when the
claim is read in light of the specification." Orthokinetics, Inc. v. Safety
Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations
omitted). That is not the case here for the reasons noted previously, and
those indicated by the Examiner.
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 27-29, 31-35, 37--42, and 44--46 as indefinite under§ 112, second
paragraph.
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THE INELIGIBILITY REJECTION
The Examiner determines that the claims are directed to an abstract
idea because they are not directed to any particular real-world problem or
application, and that the underlying idea is abstract because it deals with
thoughts independent of any physical or concrete embodiment. Ans. 18-20.
The Examiner adds that the claims do not include elements that amount to
significantly more than the abstract idea, but merely recite generic computer
elements whose use is routine in any computer implementation. Id. 3--4.
Based on these determinations, the Examiner concludes that the claims are
ineligible under § 101. Id.
Appellant argues that the claims are eligible under § 101 because they
amount to significantly more than an abstract mental idea/process by relating
to "a greater UI and overall user interface." Br. 153-55. According to
Appellant, the claimed invention is applied practically by "augmenting
persona of user for manifesting a transhuman"-a practical application that
is said to address the "giant" problem of "Machine Tyranny" that can make
man extinct. Id. 153. Although Appellant acknowledges that the present
application deals with cognitive thoughts, these thoughts are nevertheless
said to depend on the physical and concrete "handles/indicia/cognizance-
code" of the invention's "metaphor environment/DI" that is said to alter the
relationship between the "AI/Computer" and the user. Id. 153-54.
ISSUE
Under§ 101, has the Examiner erred in rejecting claims 27-29, 31-
35, 37--42, and 44--46 as directed to ineligible subject matter? This issue
turns on whether the claims are directed to an abstract idea and, if so,
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whether recited elements----considered individually and as an ordered
combination-transform the nature of the claims into a patent-eligible
application of that abstract idea.
PRINCIPLES OF LAW
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. See, e.g., Alice Corp. Pty. Ltd. v. CLS Bankint'l,
573 U.S. 208,216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes ( Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
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determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
(1981 )); "tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores" (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S.
(15 How.) 252, 267---68 (1854))); and manufacturing flour (Benson, 409 U.S.
at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 176; see also id. at 191 ("We
view respondents' claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula."). That
said, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws, ... and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment." Id. ( citing Benson and Flook); see, e.g., id. at 187 ("It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 ( quotation marks and citation
omitted). "A claim that recites an abstract idea must include 'additional
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features' to ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea]."' Id. (quoting Mayo, 566 U.S. at 77).
"[M]erely requir[ing] generic computer implementation[] fail[ s] to transform
that abstract idea into a patent-eligible invention." Id.
In January 2019, the USPTO published revised guidance on the
application of§ 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) ("Guidance"). Under that
guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MANUAL OF PATENT EXAMINING PROCEDURE
(MPEP) §§ 2106.05(a}-(c), (e}-(h) (9th ed. Rev. 08.2017, Jan. 2018)).
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, and conventional in the field (see MPEP
§ 2106.05(d)); or
( 4) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Guidance, 84 Fed. Reg. at 56.
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ANALYSIS
Independent claim 27, italicized below, 5 recites [a] persona-
extending-augmenting apparatus for at least a first human actor or
developer comprising:
a) at least a first computer or machine selected from a group
consisting of personal computer, super computer, network-is-the-computer,
personal digital assistant, smart-phone, robot, and website, comprising.
a) a memory,
b) a multi-media input-output,
c) an operating system,
d) a central processing unit,
e) a computational power or bandwidth,
f) a local and distributed object technology,
g) optionally connected to a grunt factory,
h) optionally connected to a world-wide web or a global
computer network environment, and
i) a plurality of peripherals;
b) wherein an improvement comprises a means for providing black-
box modernization user inteiface programming or overall interactive
environment modernization or upper-level user interface programming of
said computer, comprising:
a metaphor environment, comprising:
5 Unless otherwise indicated, we italicize or quote various recited limitations
for emphasis and clarity.
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i. a handle for human or machine handling, usage or adaptability as
an extended persona,
comprising:
1) a persona extender indicium, or a persona augmenter indiciumfor
representing, operating on, and transforming affordance state of said
computer into a persona extender, or persona augmenter affordance
state,
2) said indicium presented on or about said computer, on its
packaging or in said multi-media input-output or in marketing
advertisements or in documentation in connection with said extended-
persona;
ii. an operating environment or ecosystem indicium for representing,
operating on, and transforming said operating system, which heretofore was
configured as a closed, self-thinking or autonomous operating system, into
an affordance of an operating environment or ecosystem,
wherein said ecosystem offers to said actor or said developer an
integration technology for integrating into said extended-persona a plurality
of objects, a plurality of other said extended-persona of other actors, or a
plurality of other systems, in conjunction with said local and distributed
object technology;
iii. a delegated processing unit indicium for representing, operating
on, and transforming heretofore affordance of said central processing unit
into an affordance of a delegated processing unit, wherein said actor or said
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developer can delegate a grunt work or low level processing to said
delegated processing unit;
iv. said handle consolidating said operating environment and said
delegated processing unit into said extended-persona;
forming a unit;
c) the unit working to complete a function of extending or augmenting said
actor's persona, whereby:
1. said metaphor environment in combination with said computer performs a
black-box modernization user interface programming step of offering an
affordance of said persona extender or said persona augmenter to said
actor;
2. said metaphor environment peiforms a function of restructuring or
reconfiguring the computer in relation to said actor as said extended-
persona for said actor, that heretofore was egalitarian, same level or higher
level in relation to said actor where said actor functioned in a machine-
centric or close to machine-centric paradigm, whereby, unlike in traditional
artificial intelligence, humans are brought into the equation with a practical
advantage of said actor being given a headship who heretofore was merely
a user so that said computer will thenceforth be operated, steered and
developed in time as a body subservient and enslaved to said actor,
inhibiting it from normally being developed as a self-thinking and self-
propelling sociopath or unsafe system, while permitting safe incorporation
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within said extended-persona, a range of other means, some of which
heretofore were self-thinking and self-propelling;
3. said metaphor environment with said headship assigned to the actor, and
with said grunt work, or low level processing, or boolean logic processing
delegated to said delegated processing unit, said means for providing
blackbox modernization of said computer reassigns the computational
powers or bandwidth of said computer from itself to the extended-persona of
the actor, wherein said computer works under the headship and lordship of
said actor, producing said extended-persona with a high bandwidth, and
optionally, in conjunction with said grunt factory, said extended-persona
extended beyond said actor's physical self;
4. said extended-persona in conjunction with said optional global computer
network environment, extends said actor's persona worldwide;
5. said metaphor environment peiforms a function of gaining acceptance in
society for a range of means, which are otherwise self-thinking and self-
propelling, to be incorporated in or integrated with said extended-persona;
6. said metaphor environment in conjunction with said operating
environment or ecosystem having said integration technology performs a
function of producing seamless integration with said actor while cutting a
psychological barrier set by said group between themselves and said actor
so that said actor and said extended-persona work together in a oneness;
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7. said metaphor environment produces complementarity, rather than
replacing human agency, as low level work is processed by said extended-
persona, leaving strategic work to be processed by said actor himself;
8. said metaphor environment enables efficient economic utilization of
resources, with said extended-persona apportioned resources according to
what said computer is capable of, leaving resources for said actor, who
alone is best capable of performing certain functions, thus enabling the
production of
a. a synergy, wherein said computer and said actor operate
together in a hierarchical-complimentary or person-
extender or person-augmenter relationship, that is greater
than said computer and said actor heretofore working
independent of each other in an unresourceful arrangement
of egalitarian relationship, which is limited to a human-to-
human communication paradigm with said computer that
uses up resources uneconomically;
b. a challenging synergy in a scenario where said computer
extends itself, using subservient humans;
d) said unit providing said actor:
1. said high bandwidth,
2. said oneness,
3. said synergy, and
4. said headship,
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working to complete an overall function of intuitively enabling said actor to
better govern, administer, manage or direct a plurality of actors, or
manipulate said plurality of objects or systems, without the actor abdicating
power or losing control to the machine, all of which are
optionally connected to said global computer network environment.
As the Specification explains, the invention, entitled "Necktie-
imitating Persona Extender/Environment-Integrator and Method for Super-
Augmenting a Persona to manifest a Pan-Environment Super-Cyborg or
Wedded Avatar of Christ with eThrone for Global Governance," is said to
relate to "cognitive Information technology engineering of a morphological
solution and a handle for the same to the macroscopic problem of n-entropy
i.e[.,] loss of control/information in the globalized world." Spec. 1. By
using a "Christocratic Necked Service Oriented Architecture[,] ... even
Global Cyborgic Conglomerate Christs/Superhumans can be manifested."
Id.
Specifically, the disclosed invention is said to provide "a
morphological solution to the macroscopic problem of n-entropy i.e. loss of
control/ Information in the globalized world that is giving rise to global
anarchy." Spec. 7. To this end, "[a] Chrlstocratic Social Architecture for a
Christ-headed Environment with an eThrone is proposed where everyone is
given their due and is judged/glorified/Integrated/placed." Id. According to
page 7 of the Specification, "[ e Jach subject of the kingdom is given a
'rapture kit' which consists of a Necktie-imitating Persona-Extender to be
'tied-upward' (worn on top of a Fine Linen Environment Integrator Garment
66 shown in Fig. IC imitating global network) as an Indication of roping-in
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or tying-in borne fruits/goods (Goods & Services)." The Specification adds
that "[a] super-synergy of global proportion results at the constituted e-neck
of the Bride's body that ultimately serves as an eThrone or an e-donkey that
Christ sits on, upon His second coming." Id.
According to page 7 of the Specification, "the profiles of GOODS &
SERVICES of a rightful people who have subscribed, accented or
acquiesced to the evangelism of the kingdom of heaven are processed
in the Christocratic Necked Service Oriented Architecture (CNSOA)." The
Specification explains that "people are divided into two groups in the
architecture. One group to be in the upper (inverted) pyramid is called
Bride space and another to be in the bottom (upright) pyramid is called
Christocratic-space or Governed-space in the architecture." Id. The
Specification adds that "[ t ]he bridespace is further divided into two, they are
those who will be in the eastern region of the earth and those who will be in
the western region of the earth. Likewise, the bottom Upright
Pyramid, hereafter called Christocratic-space or Governed-space." Id.
In an exemplary embodiment, "each member/citizen of Bridespace is
set with a Necktie-imitating Persona-Extender/Environment-Integrator. Id.
According to page 7 of the Specification, "[t]he Necktie-imitating Persona-
Extender/Environment-Integrator is an apparatus that consists of a data
processing device connected to a global network with handwriting, speech,
gesture and Image synthesizing/ processing software, a camera ( optional), a
ear-phone with microphone ( optional) and a projector ( optional) on and
about their forehead and body."
As page 7 of the Specification explains, "[ n ]ecktie is spoken of in a
figurative sense and is applicable at the System functionality (usability) level
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and not mandatorily applicable at the apparatus / hardware level, i.e. it is not
for ornamental purposes." The Specification adds that "[ w ]ith the Necktie
(imitating) Persona-Extender/Environment-Integrator, each member's
Persona and proximity Meatspace is augmented by the data processor, which
sees through the camera, microphone or touch-screens and processes all that
we see, hear and touch and generates and projects through the projector or
earphone, 'smart' cyberspace in multi-media." Id.
The Specification further explains that "[t]hrough each member's
governance, with the members themselves being micro-tied (governed) and
integrated together into the body's architecture as with a necktie tying, it
purportedly joins/marries each member with the head." Id. According to
the Specification, "[t]he result is a Super-ordinate's Necktie-imitating
Persona-Extender/Environment-Integrator imitating a corporate-necktie that
figuratively/prosthetically/dynamically takes the place of a supposed missing
frontal spinal column of a human body, purportedly extending (omni-
presenting) him from the brain downwards into the whole environment for
orchestrated care & management .... " Id. This arrangement is also said to
simultaneously "integrate the elements (through metaphor objects) of the
environment harmoniously with the head." Id.
According to the Specification's page 14, Figure 2 shows "Necktie"
apparatuses consisting of (1) a pocket data processing device 18 working as
a Delegated Processing Unit connected to a global network with
handwriting, speech, gesture and image synthesizing/processing software;
(2) an optional camera 10 on the forehead; (3) an optional ear-phone 16 with
microphone 14; and (4) an optional projector 12. As shown in Figure 2,
"Cyberspace" 21 is superimposed over "Meatspace" 20 in multi-media,
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resulting in "augmented Meatspace of persona or Laborspace of goods and
services." Spec. 14.
According to page 8 of the Specification, Appellant's Figure 2,
reproduced below, shows a diagram of a scenario where the Proximity
"Meatspace" and "Cyberspace" of three collaborating members are
integrated and augmented using their Necktie-imitating Personal
Extender/Environment-Integrator Metaphor Environments.
Appellant's Figure 2 showing integrating and augmenting proximity
"Meatspace" and "Cyberspace" using their Necktie-imitating Personal
Extender/Environment-Integrator Metaphor Environments
According to the Specification's page 14, the invention "cognitively
represents an Extender of the Self through the Necktie Imitation and results
in a high bandwidth interaction for those who need to learn and member the
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Body with a Christocratic Necked Service Oriented Architecture .... " The
Specification further explains that "this black-box modernization technique,
Distributed Object Technology and its middleware are providing for us the
necessary integration technology for collating/integrating the environment
elementally, while the browser and the web are providing for us the
necessary extension technology." Spec. 14. The Specification adds that "in
effect we have a Global Necktie-Imitating Persona-Extender/Environment-
Integrator. In other words a Global Cyborg (machine-man) can
be realized and manifested because the Necktie-imitating Persona-
Extender/Environment/lntegrator metaphor environment 'wraps' the newly
assembled system with new and unexpected concepts as enumerated in the
Advantages of the 'Necktie' I 'Fine-Linen-clothes." Id. Based on this
functionality, the Necktie-Imitating Persona-Extender /Environment-
Integrator is said to be "an extension of self to the far comers of the world
by means of a global network, while also serving to integrate into self
(Persona) all types of metaphor objects of the environment." Id.
On page 16, the Specification notes that the necktie can be used to
"integrate by standard Object Oriented Analysis and Design techniques and
order by ranking, one member with another member or a plurality of
members 'in' a third member of the body into the already wrapped-up (with
Clean-linen clothing) initial Subscription/ Accentor-space." The
Specification's page 27 also notes that the invention "lends the environment
gracefully to object oriented principles such as abstraction, encapsulation
( wrapping), inheritance, and polymorphism."
The Specification's page 20 describes the operation of a "Necktie-
imitating Persona-Extender/Environment-Integrator" to augment an
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individual's persona. This passage describes an embodiment "using
common Computer Vision techniques, which are available in the open
source." Spec. 20. In this embodiment, a "camera, which may be placed as
portable headgear or otherwise conveniently on the body, recognizes all
what we see with our naked eye as well as Cues." Id. These "Cues" are
provided via "encoded tags, placed on user's fingers or in the user's
proximity with respect to: for instance 1) 'Pointing,' with the index finger
tag; 2) 'Grabbing,' with two fingers' tags; 3) 'Capturing," with four
fingers' tags, objects real or virtual.' Id.
According to this embodiment, "[t]he software program processes the
video stream data captured by the camera and tracks the locations of the
colored markers in N-Space with respect to the Camera location." Id. As
the Specification explains, "[t]he movements and arrangements of a set of
tags are interpreted as specific encoded sign language that act as interaction
instructions for a mini Projector (which may also be placed on the body or
otherwise) to project visual information from Cyberspace on surfaces in
User's Proximity Meatspace." Id. For example, this projection can be "on a
book that [the individual] is reading or on a wall in front of him or even on
other representations of his Meatspace remotely held on other
displays/holograms." Id.
The Specification further explains that "[ t ]he processing of the
Extender itself may be done in a handheld electronic data processor. Thus
the User's Proximity Meatspace is layered with pertinent 'smart' Cyberspace
and thereby it is augmented." Id. The Specification adds that Cues can be
other media as well, including Audio. Id. In this implementation, the data
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processor "picks up" whatever is spoken, and "'smart' cyber-audio is
generated for the User." Id.
In light of this description, we now address the eligibility of the
claims under § 101. As noted below, we conclude that the claims are
ineligible because they are directed to an abstract idea.
Claims 27-29, 31-35, 37-42, and 44-46: Alice/Mayo Step One
As noted below, we conclude that the claims are ineligible because
they are directed to an abstract idea. Turning to independent claim 2 7, we
first note that the claim recites an apparatus and, therefore, falls within the
machine category of§ 101. But despite falling within this statutory
category, we must still determine whether the claim is directed to a judicial
exception, namely an abstract idea. See Alice, 573 U.S. at 217. To this end,
we must determine whether (1) the claim recites a judicial exception, and (2)
fails to integrate the exception into a practical application. See Guidance, 84
Fed. Reg. at 52-55. If both elements are satisfied, the claim is directed to a
judicial exception under the first step of the Alice/Mayo test. See id.
In the rejection, the Examiner determines that claim 27 is directed to
an abstract idea because it is not directed to any particular real-world
problem or application, but rather deals with thoughts independent of any
physical or concrete embodiment. Final Act. 18-20. To determine whether
a claim recites an abstract idea, we (1) identify the claim's specific
limitations that recite an abstract idea, and (2) determine whether the
identified limitations fall within certain subject matter groupings, namely (a)
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mathematical concepts6; (b) certain methods of organizing human activity7;
or ( c) mental processes. 8
Here, the recited "ecosystem offer[ing] to said actor or said developer
... integrati[on] into said extended-persona a plurality of objects, a
plurality of other said extended-persona of other actors, or a plurality of
other systems ... , humans are brought into the equation with a practical
advantage of said actor being given a headship who heretofore was merely a
user so that said computer will thenceforth be operated, steered and
developed in time as a body subservient and enslaved to said actor,
inhibiting it from normally being developed as a self-thinking and self-
propelling sociopath or unsafe system, while permitting safe incorporation
within said extended-persona, a range of other means, some of which
heretofore were self-thinking and self-propelling; ... said extended-persona
in conjunction with said optional global computer network environment,
extends said actor's persona worldwide; ... said metaphor environment
performs a function of gaining acceptance in society for a range of means,
6 Mathematical concepts include mathematical relationships, mathematical
formulas or equations, and mathematical calculations. See Guidance, 84
Fed. Reg. at 52.
7 Certain methods of organizing human activity include fundamental
economic principles or practices (including hedging, insurance, mitigating
risk); commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions). See Guidance, 84 Fed. Reg. at 52.
8 Mental processes are concepts performed in the human mind including an
observation, evaluation, judgment, or opinion. See Guidance, 84 Fed. Reg.
at 52.
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which are otherwise self-thinking and self-propelling, to be incorporated in
or integrated with said extended-persona; ... said metaphor environment in
conjunction with said operating environment or ecosystem having said
integration technology performs a function of producing seamless
integration with said actor while cutting a psychological barrier set by said
group between themselves and said actor so that said actor and said
extended-persona work together in a oneness; ... said metaphor
environment produces complementarity, rather than replacing human
agency, as low level work is processed by said extended-persona, leaving
strategic work to be processed by said actor himself; ... said metaphor
environment enables efficient economic utilization of resources, with said
extended-persona apportioned resources according to what said computer is
capable of, leaving resources for said actor, who alone is best capable of
peiforming certain functions, thus enabling the production of
a. a synergy, wherein said computer and said actor operate
together in a hierarchical-complimentary or person-
extender or person-augmenter relationship, that is greater
than said computer and said actor heretofore working
independent of each other in an unresourceful arrangement
of egalitarian relationship, which is limited to a human-to-
human communication paradigm with said computer that
uses up resources uneconomically;
b. a challenging synergy in a scenario where said computer
extends itself, using subservient humans;
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d) said unit providing said actor:
1. said high bandwidth,
2. said oneness,
3. said synergy, and
4. said headship,
working to complete an overall function of intuitively enabling said
actor to better govern, administer, manage or direct a plurality of actors, or
manipulate said plurality of objects or systems, without the actor abdicating
power or losing control to the machine, all of which are optionally
connected to said global computer network environment" fits squarely
within the the mental processes and human activity organization categories
of the agency's guidelines enabling a human actor to better govern,
administer, manage or direct plural actors, or manipulate said plurality of
objects or systems-albeit by using a computer. See Guidance, 84 Fed. Reg.
at 52 (listing exemplary methods of organizing human activity, including
managing personal behavior or relationships or interactions between people,
including following rules or instructions); see also id. (listing exemplary
mental processes including observation, evaluation, and judgment).
That is, apart from the following recited additional elements, namely
the ''first computer or machine selected from a group consisting of personal
computer, super computer, network-is-the-computer, personal digital
assistant, smart-phone, robot, and website, comprising a) a memory, b) a
multi-media input-output, c) an operating system, d) a central processing
unit, e) a computational power or bandwidth, f) a local and distributed
object technology, g) optionally connected to a grunt factory, h) optionally
connected to a world-wide web or a global computer network environment,
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and i) a plurality of peripherals; ... a means for providing black-box
modernization user interface programming or overall interactive
environment modernization or upper-level user interface programming of
said computer, comprising ... a metaphor environment, comprising ... a
handle for human or machine handling, usage or adaptability as an
extended persona, comprising: ... a persona extender indicium, or a
persona augmenter indicium for representing, operating on, and
transforming a.ffordance state of said computer into a persona extender, or
persona augmenter a.ffordance state, ... said indicium presented on or
about said computer, on its packaging or in said multi-media input-output or
in marketing advertisements or in documentation in connection with said
extended-persona; ... an operating environment or ecosystem indicium for
representing, operating on, and transforming said operating system, which
heretofore was configured as a closed, self-thinking or autonomous
operating system, into an a.ffordance of an operating environment or
ecosystem, ... an integration technology for integrating into said extended-
persona a plurality of objects, a plurality of other said extended-persona of
other actors, or a plurality of other systems, in conjunction with said local
and distributed object technology; . .. a delegated processing unit indicium
for representing, operating on, and transforming heretofore a.ffordance of
said central processing unit into an a.ffordance of a delegated processing
unit, wherein said actor or said developer can delegate a grunt work or low
level processing to said delegated processing unit; ... said handle
consolidating said operating environment and said delegated processing
unit into said extended-persona; forming a unit; ... the unit working to
complete a function of extending or augmenting said actor's persona,
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whereby ... said metaphor environment in combination with said computer
performs a black-box modernization user interface programming step of
offering an affordance of said persona extender or said persona augmenter
to said actor; ... said metaphor environment performs a function of
restructuring or reconfiguring the computer in relation to said actor as said
extended-persona for said actor, that heretofore was egalitarian, same level
or higher level in relation to said actor where said actor functioned in a
machine-centric or close to machine-centric paradigm, ... said metaphor
environment with said headship assigned to the actor, and with said grunt
work, or low level processing, or boolean logic processing delegated to said
delegated processing unit, said means for providing blackbox modernization
of said computer reassigns the computational powers or bandwidth of said
computer from itself to the extended-persona of the actor, wherein said
computer works under the headship and lordship of said actor, producing
said extended-persona with a high bandwidth, and optionally, in conjunction
with said grunt factory, said extended-persona extended beyond said actor's
physical self; ... all of which are optionally connected to said global
computer network environment,"9 the claim recites mental processes or
certain methods of organizing human activity, namely managing personal
behavior or relationships or interactions between people, including following
rules or instructions. See Guidance, 84 Fed. Reg. at 52; see also id. (listing
9 For clarity and brevity, we refer to these italicized limitations as the
"additional elements" consistent with the agency's eligibility guidelines.
See Guidance, 84 Fed. Reg. at 54--55 (requiring (1) identifying whether there
are any additional recited elements beyond the abstract idea, and (2)
evaluating those elements individually and collectively to determine whether
they integrate the exception into a practical application).
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exemplary mental processes including observations, evaluations, and
judgments); see also CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d
1366, 1372 (Fed. Cir. 2011).
Although the claim recites an abstract idea based on these methods of
organizing human activity and mental processes, we nevertheless must still
determine whether the abstract idea is integrated into a practical application,
namely whether the claim applies, relies on, or uses the abstract idea in a
manner that imposes a meaningful limit on the abstract idea, such that the
claim is more than a drafting effort designed to monopolize the abstract idea.
See Guidance, 84 Fed. Reg. at 54--55. To this end, we (1) identify whether
there are any additional recited elements beyond the abstract idea, and (2)
evaluate those elements individually and collectively to determine whether
they integrate the exception into a practical application. See id.
First, we are not persuaded that the claimed invention improves the
computer or its components' functionality or efficiency, or otherwise
changes the way those devices function, at least in the sense contemplated
by the Federal Circuit in Enfzsh LLC v. Microsoft Corporation, 822 F.3d
1327 (Fed. Cir. 2016). The claimed self-referential table inEnfish was a
specific type of data structure designed to improve the way a computer
stores and retrieves data in memory. Enfish, 822 F.3d at 1339. To the extent
Appellant contends that the claimed invention uses such a data structure to
improve a computer's functionality or efficiency, or otherwise change the
way that device functions (See Br. 153-55), there is no persuasive evidence
on this record to substantiate such a contention.
To the extent that Appellant contends that the claimed invention is
rooted in technology because it is ostensibly directed to a technical solution
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(see id.), we disagree. Even assuming, without deciding, that claimed
invention can augment a human actor or developer's ability to retrieve,
process, and output information-real or virtual-and delegate certain tasks
to a computer such that those tasks are completed faster than doing so
manually, any speed increase comes from the capabilities of the generic
computer components-not the recited process itself. See FairWarning IP,
LLC v. Iatric Systems, Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016) (citing
Bancorp Services, LLC v. Sun Life Assurance Co., 687 F.3d 1266, 1278
(Fed. Cir. 2012) ("[T]he fact that the required calculations could be
performed more efficiently via a computer does not materially alter the
patent eligibility of the claimed subject matter.")); see also Intellectual
Ventures I LLC v. Erie Indemnity Co., 711 F. App'x 1012, 1017 (Fed. Cir.
2017) (unpublished) ("Though the claims purport to accelerate the process
of finding errant files and to reduce error, we have held that speed and
accuracy increases stemming from the ordinary capabilities of a general-
purpose computer do not materially alter the patent eligibility of the claimed
subject matter."). Like the claims in FairWarning, the focus of claim 27 is
not on an improvement in computer processors as tools, but on certain
independently abstract ideas that use generic computing components as
tools. See FairWarning, 839 F.3d at 1095 (citations and quotation marks
omitted).
This is not a case involving eligible subject matter as in DDR
Holdings, LLC v. Hotels.Com, L.P., 773 F.3d 1245 (Fed. Cir. 2014). There,
instead of a computer network operating in its normal, expected manner by
sending a website visitor to a third-party website apparently connected with
a clicked advertisement, the claimed invention in DDR generated and
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directed the visitor to a hybrid page that presented (1) product information
from the third party, and (2) visual "look and feel" elements from the host
website. DDR, 773 F.3d at 1258-59. Given this particular Internet-based
solution, the court held that the claimed invention did not merely use the
Internet to perform a business practice known from the pre-Internet world,
but rather was necessarily rooted in computer technology to overcome a
problem specifically arising in computer networks. Id. at 1257.
That is not the case here. As noted previously, Appellant's claimed
invention, in essence, organizes human activity by enabling a human actor to
better govern, administer, manage or direct plural actors, or manipulate
plural objects or systems-albeit by using a computer. Despite Appellant's
arguments to the contrary (see Br. 153-55), the claimed invention here is not
necessarily rooted in computer technology in the sense contemplated by
DDR where the claimed invention solved a challenge particular to the
Internet. Although the Appellant's invention uses various computer-based
components noted previously, the claimed invention does not solve a
challenge particular to the computer or the network used to implement this
functionality.
Nor is this case analogous to the claimed invention that the court held
eligible in McRO, Inc. v. Bandai Namco Games America, Inc., 837 F.3d
1299 (Fed. Cir. 2016). There, the claimed process used a combined order of
specific rules that rendered information in a specific format that was applied
to create a sequence of synchronized, animated characters. McRO, 837 F.3d
at 1315. Notably, the recited process automatically animated characters
using particular information and techniques-an improvement over manual
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three-dimensional animation techniques that was not directed to an abstract
idea. Id. at 1316.
But unlike the claimed invention in McRO that improved how the
physical display operated to produce better quality images, the claimed
invention here merely uses generic computing components to organize
human activity by enabling a human actor to better govern, administer,
manage or direct plural actors, or manipulate plural objects or systems. This
generic computer implementation is not only directed to fundamental human
activity organization and mental processes, but also does not improve a
display mechanism as was the case in McRO. See SAP Am. v. InvestPic,
LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) (distinguishingMcRO).
Although the claimed invention requires computer components, it is
the incorporation of those components-not a claimed rule-that
purportedly improves the existing process. Cf Fair Warning IP, LLC v.
Iatric Systems, Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016). In short, the
claimed invention does not focus on improving computers as tools, but
rather certain independently abstract ideas that use computers as tools. See
also Mortgage Grader Inc. v. First Choice Loan Services, Inc., 811 F.3d
1314, 1324--25 (Fed. Cir. 2016) (noting that components such an "interface,"
"network," and "database" are generic computer components that do not
satisfy the inventive concept requirement); see also Guidance, 84 Fed. Reg.
at 55 (citing MPEP § 2106.05(±)).
Therefore, we do not find that the claim recites additional elements
improving (1) the computer itself, or (2) another technology or technical
field. See Guidance, 84 Fed. Reg. at 55 (citing MPEP § 2106.05(a)).
Rather, the above-noted additional elements merely (1) apply the abstract
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idea on a computer; (2) include instructions to implement the abstract idea
on a computer; or (3) use the computer as a tool to perform the abstract idea.
See Guidance, 84 Fed. Reg. at 55 (citing MPEP § 2106.05(±)). Therefore,
the recited additional elements do not integrate the abstract idea into a
practical application when reading claim 27 as a whole.
In conclusion, although the claimed invention may be beneficial by
enabling a human actor to better govern, administer, manage or direct plural
actors, or manipulate plural objects or systems, a claim for a useful or
beneficial abstract idea is still an abstract idea. See Ariosa, 788 F.3d at
1379--80.
We, therefore, agree with the Examiner that claim 27 is directed to an
abstract idea.
Claims 27-29, 31-35, 37-42, and 44-46: Alice/Mayo Step Two
Turning to Alice/Mayo step two, claim 27's additional recited
elements, namely those italicized elements noted previously in connection
with footnote 9--considered individually and as an ordered combination-
do not provide an inventive concept such that these additional elements
amount to significantly more than the abstract idea. See Alice, 573 U.S. at
221; see also Guidance, 84 Fed. Reg. at 56. As noted above, the claimed
invention merely uses generic computing components to implement the
recited abstract idea.
To the extent that Appellant contends that the recited limitations,
including the additional elements' particular recited functionality, add
significantly more than the abstract idea to provide an inventive concept
under Alice/Mayo step two (see App. Br. 153-55), these limitations are not
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additional elements beyond the abstract idea, but rather are directed to the
abstract idea as noted previously. See Guidance, 84 Fed. Reg. at 56
(instructing that additional recited elements should be evaluated in
Alice/Mayo step two to determine whether they (1) add specific limitations
that are not well-understood, routine, and conventional in the field, or (2)
simply append well-understood, routine, and conventional activities
previously known to the industry (citing MPEP § 2106.05(d)).
Rather, the italicized elements noted previously in connection with
footnote 9 are the additional recited elements whose generic computing
functionality is well-understood, routine, and conventional. Accord Ans.
19--20 (finding that the claims do not include additional elements that
amount to significantly more than the abstract idea, but merely recite generic
computer elements whose use is routine in any computer implementation).
Appellant's arguments in this regard (see Br. 153-55) are, therefore,
unpersuasive.
In conclusion, we do not find that the additional recited elements-
considered individually and as an ordered combination-add significantly
more than the abstract idea to provide an inventive concept under
Alice/Mayo step two. See Alice, 573 U.S. at 221; see also Guidance, 84 Fed.
Reg. at 56.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 27, and claims 28, 29, 31-35, 37--42, and 44--46 not argued separately
with particularity.
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CONCLUSION
The Examiner did not err in rejecting claims 27-29, 31-35, 37--42,
and 44--46 under the first and second paragraphs § 112 and § 101.
DECISION
We affirm the Examiner's decision to reject claims 27-29, 31-35, 37-
42, and 44--46.
AFFIRMED
65