Ex Parte Parker

Patent Trial and Appeal Board

Aug 24, 2017

13166759 (P.T.A.B. Aug. 24, 2017)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/166,759 06/22/2011 David H. Parker DHP-17 6582
7590 08/24/2017
David H. Parker
3919 Deepwoods Road
Earlysville,, VA 22936-9777
EXAMINER
OUELLETTE, JONATHAN P
ART UNIT PAPER NUMBER
3629
MAIL DATE DELIVERY MODE
08/24/2017 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 DAVID H. PARKER
____________

Appeal 2016-004274
Application 13/166,759
Technology Center 3600
____________

Before JOSEPH L. DIXON, JOHN A. EVANS, and
STEVEN M. AMUNDSON, Administrative Patent Judges.

AMUNDSON, Administrative Patent Judge.

DECISION ON APPEAL

Appellant seeks our review under 35 U.S.C. § 134(a) from a final
rejection of claims 19–21 and 23–30, i.e., all pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
The Invention
According to the Specification, the invention “utilizes acoustic waves
through-the-earth to establish emergency communications in an underground
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mine.” Spec. ¶ 1.1 The Specification explains that a miner “communicate[s]
using simple tools available in a mine,” and “a personal electronics device
designed to be carried by a miner . . . automatically decode[s] acoustically
transmitted text messages.” Abstract.
Exemplary Claim
Independent claim 19 exemplifies the subject matter of the claims
under consideration and reads as follows:
19. A method for acoustic communication through-the-earth
with steps comprising:
(a) writing an emergency response plan for an underground
mine, the emergency response plan including instructions
for;
i. determining a second time of day based at least in
part on a first time of day, wherein
the first time of day is marked by an unscheduled
event,
the second time of day follows the first time of
day,
the unscheduled event severs communications
between underground personnel inside the
underground mine and rescue personnel outside
the underground mine, and
the unscheduled event prevents the underground
personnel from leaving the underground mine;

1 This decision uses the following abbreviations: “Spec.” for the
Specification, filed June 22, 2011; “Final Act.” for the Final Office Action,
mailed April 17, 2015; “App. Br.” for the Appeal Brief, filed September 7,
2015; “Ans.” for the Examiner’s Answer, mailed January 21, 2016; and
“Reply Br.” for the Reply Brief, filed March 11, 2016.
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ii. determining a first differential time period,
wherein the first differential time period is a
repetition period;
iii. determining a second differential time period,
wherein the second differential time period is a
communications window; and
iv. acoustically encoding at least one binary bit of
information, wherein the encoding depends at least
in part on the determined repetition period;
(b) training the underground personnel and the rescue
personnel how to execute the emergency response plan;
(c) executing the emergency response plan in response to a
first unscheduled event, wherein the first unscheduled
event is an actual accident in the underground mine;
(d) determining by the underground personnel a first
estimation of the first time of day, based at least in part
on the first unscheduled event and the training;
(e) determining by the rescue personnel a second estimation
of the first time of day, based at least in part on the first
unscheduled event and the training;
(f) determining by the underground personnel the second
time of day based at least in part on the first estimatation
[sic] of the first time of day and the emergency response
plan;
(g) determining by the rescue personnel the second time of
day based at least in part on the second estimation of the
first time of day and the emergency response plan,
wherein the underground personnel and the rescue
personnel determine the same second time of day
independently;
(h) generating by the underground personnel a plurality of
acoustic events which encode the at least one binary bit
of information in accordance with the emergency
response plan, wherein
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i. each of the plurality of acoustic events produces
substantially a same acoustic signature to produce
a plurality of acoustic signatures;
ii. the plurality of acoustic signatures propagate
through-the-earth by vibrations of the earth;
iii. each of the plurality of acoustic events are spaced
apart in time in accordance with the repetition
period; and
iv. the generating starts at the second time of day and
ends following the communications window;
(i) detecting the plurality of acoustic signatures by at least
one transducer that receives the vibrations of the earth
and recording a corresponding plurality of digital
acoustic signatures produced by each of the at least one
transducers from at least the second time of day until the
communications window later;
(j) digitally processing at least two of the plurality of digital
acoustic signatures to produce at least one correlated
signal;
(k) determining the at least one binary bit of information
based at least in part on the at least one correlated signal,
the second time of day, the repetition period, and the
communications window; and
(1) communicating the at least one binary bit of information
to the rescue personnel.
App. Br. 46–48 (Claims App.).
The Prior Art Supporting the Rejections on Appeal
As evidence of unpatentability, the Examiner relies on the following
prior art:
Reagor et al. (“Reagor”) US 2006/0148514 A1 July 6, 2006
Barrett US 8,294,568 B2 Oct. 23, 2012
(filed July 10, 2007)
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The Rejections on Appeal
Claims 19–21 and 23–30 stand rejected under 35 U.S.C. § 112 ¶ 1
as failing to comply with the written-description requirement. Final
Act. 2–3; Ans. 3, 5–6.
Claims 19–21 and 23–30 stand rejected under 35 U.S.C. § 101
as directed to non-statutory subject matter. Final Act. 4; Ans. 3–5.
Claims 19–21 and 23–30 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over the MINER Act, Easysurf, Reagor, and Barrett. Final
Act. 5–12; Ans. 3, 6.

ANALYSIS
We have reviewed the rejections of claims 19–21 and 23–30 in light
of Appellant’s arguments that the Examiner erred. For the reasons explained
below, we concur with the Examiner’s conclusion that the claims recite
patent-ineligible subject matter. But we disagree with the Examiner’s
determinations under § 112 ¶ 1 and § 103(a). We adopt the Examiner’s
findings and reasoning in the Final Office Action (Final Act. 4) and Answer
(Ans. 4–5) that relate to the § 101 rejection. We add the following to
address and emphasize specific findings and arguments.
The § 112 ¶ 1 Rejection of Claims 19–21 and 23–30
Section 112’s written-description requirement serves to “clearly allow
persons of ordinary skill in the art to recognize that [the inventor] invented
what is claimed.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336,
Mine Improvement and New Emergency Response Act of 2006, Pub. L.
No. 109-236, 120 Stat. 493 (2006) (“MINER Act”)
Easysurf.cc (Sept. 22, 2010), http://web.archive.org/web/
20100922072611/http://easysurf.cc/tspan.htm (“Easysurf”)
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1351 (Fed. Cir. 2010) (en banc) (alteration in original) (quoting Vas-Cath,
Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991)); see Blue Calypso,
LLC v. Groupon, Inc., 815 F.3d 1331, 1344 (Fed. Cir. 2016). “[T]he test for
sufficiency is whether the disclosure of the application relied upon
reasonably conveys to those skilled in the art that the inventor had
possession of the claimed subject matter as of the filing date.” Ariad,
598 F.3d at 1351; Mentor Graphics Corp. v. EVE-USA, Inc., 851 F.3d 1275,
1296 (Fed. Cir. 2017). The “test requires an objective inquiry into the four
corners of the specification from the perspective of a person of ordinary skill
in the art.” Ariad, 598 F.3d at 1351. The written-description requirement
does not, however, “demand any particular form of disclosure” or require
that “the specification recite the claimed invention in haec verba.” Id.
at 1352. The analysis for sufficiency of disclosure may consider “such
descriptive means as words, structures, figures, diagrams, formulas, etc.”
Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997).
Here, in the Appeal Brief’s Summary of Claimed Subject Matter,
Appellant cites various portions of the Specification supporting the claims
under consideration. App. Br. 8–16. In the Answer, the Examiner does not
identify any deficiency in Appellant’s citations or any limitation lacking
support in the Specification. Ans. 5–6. Based on an analysis of the
Specification, we agree with Appellant that the Specification reasonably
conveys to those skilled in the art that Appellant had possession of the
claimed subject matter as of the filing date. Hence, we do not sustain the
§ 112 ¶ 1 rejection of claims 19–21 and 23–30.
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The § 101 Rejection of Claims 19–21 and 23–30
INTRODUCTION
The Patent Act defines patent-eligible subject matter broadly:
“Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.” 35 U.S.C. § 101. In Mayo Collaborative
Services v. Prometheus Laboratories, Inc., 566 U.S. 66, 70 (2012), and Alice
Corp. v. CLS Bank International, 134 S. Ct. 2347, 2354 (2014), the Supreme
Court explained that § 101 “contains an important implicit exception” for
laws of nature, natural phenomena, and abstract ideas. See Diamond v.
Diehr, 450 U.S. 175, 185 (1981). In Mayo and Alice, the Court set forth a
two-step analytical framework for evaluating patent-eligible subject matter:
First, “determine whether the claims at issue are directed to” a patent-
ineligible concept, such as an abstract idea. Alice, 134 S. Ct. at 2355. If so,
“consider the elements of each claim both individually and ‘as an ordered
combination’ to determine whether the additional elements” add enough to
transform the “nature of the claim” into “significantly more” than a patent-
ineligible concept. Id. at 2355, 2357 (quoting Mayo, 566 U.S. at 79); see
Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257
(Fed. Cir. 2016).
Step one in the Mayo/Alice framework involves looking at the “focus”
of the claims at issue and their “character as a whole.” Elec. Power Grp.,
LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). Step two
involves the search for an “inventive concept.” Alice, 134 S. Ct. at 2355;
Elec. Power Grp., 830 F.3d at 1353. An “inventive concept” requires more
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than “well-understood, routine, conventional activity already engaged in” by
the relevant community. Rapid Litig. Mgmt. Ltd. v. CellzDirect, Inc.,
827 F.3d 1042, 1047 (Fed. Cir. 2016) (quoting Mayo, 566 U.S. at 79–80).
MAYO/ALICE STEP ONE: CLAIM 19
For Mayo/Alice step one, the Examiner determines, and we agree, that
the claims are directed to the abstract ideas of: (1) “Outlining an order of
operations/instructions for personnel (underground and above ground) in the
case of a mining emergency”; and (2) “Receiving acoustical data, . . .
Processing/Decoding the acoustical data, . . . and Reporting/Transmitting
Data to Emergency Personnel.” Ans. 4. The Examiner reasons that those
abstract ideas correspond to methods of organizing human activity and
organizing information through mathematical correlations, respectively. Id.
Appellant does not assert that claim 19 recites patent-eligible subject matter
under Mayo/Alice step one. Reply Br. 4–12; see App. Br. 26–35.
MAYO/ALICE STEP TWO: CLAIM 19
Instead, Appellant maintains under Mayo/Alice step two that claim 19
includes “significantly more” than the abstract ideas identified by the
Examiner and “does not ‘tie up’ or ‘pre-empt others’ from using” those
abstract ideas. Reply Br. 7; see App. Br. 28. Appellant contends that
claim 19 does not “‘tie up’ or pre-empt others from methods for establishing
emergency communication in a mining accident, i.e., the actual invention.”
Reply Br. 7; see App. Br. 29. Based on those contentions, Appellant asserts
that claim 19 satisfies § 101’s requirements under the streamlined eligibility
analysis for Mayo/Alice step two in the “2014 Interim Guidance on Patent
Subject Matter Eligibility,” 79 Fed. Reg. 74618, 74625 (Dec. 16, 2014).
Reply Br. 7–8; see App. Br. 29.
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Appellant’s arguments regarding preemption do not persuade us of
Examiner error. While preemption may denote patent ineligibility, its
absence does not demonstrate patent eligibility. See FairWarning, IP, LLC
v. Iatric Sys., Inc., 839 F.3d 1089, 1098 (Fed. Cir. 2016). For claims
covering a patent-ineligible concept, preemption concerns “are fully
addressed and made moot” by an analysis under the Mayo/Alice framework.
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015).
Appellant contends that claim 19 includes “significantly more” than a
patent-ineligible concept because it “recite[s] an improvement to another
technology or technical field.” Reply Br. 9; see App. Br. 30. In particular,
Appellant contends that “the claimed invention is an ‘improvement’ to the
existing MSHA approved system,” i.e., a “truck mounted seismic [location]
system [that] is obsolete, takes too long to deploy, and has never located a
missing miner.” Reply Br. 10; see App. Br. 31; see also Mine Safety &
Health Admin., U.S. Dep’t of Labor, Internal Review of MSHA’s Actions at
the Sago Mine Wolf Run Mining Company Sago, Upshur County, West
Virginia 2, 122–24 (June 2007). Instead of reciting a seismic location
system, however, claim 19 covers a “method for acoustic communication
through-the-earth.” App. Br. 46–48 (Claims App.). Because Appellant’s
contentions are not commensurate with claim 19’s scope, they do not
persuade us of Examiner error.
While claim 19 covers a novel—and seemingly advantageous—
communication method, that does not suffice to confer patent eligibility.
“[U]nder the Mayo/Alice framework, a claim directed to a newly discovered
law of nature (or natural phenomenon or abstract idea) cannot rely on the
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novelty of that discovery for the inventive concept necessary for patent
eligibility.” Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1376
(Fed. Cir. 2016). “[A] claim for a new abstract idea is still an abstract idea.”
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016). “The search for a § 101 inventive concept is thus distinct from
demonstrating § 102 novelty.” Id.
Appellant additionally contends that claim 19 “qualifies as ‘something
more’ because it recites particular machines,” i.e., a “transducer, recorder,
and digital processor that correlates signals.” Reply Br. 11; see App. Br. 32.
But “not every claim that recites concrete, tangible components escapes the
reach of the abstract-idea inquiry.” In re TLI Commc’ns LLC Patent Litig.,
823 F.3d 607, 611 (Fed. Cir. 2016). Implementing an abstract idea using
conventional machines or devices “add[s] nothing of substance” and,
therefore, does not transform the nature of the claim into a patent-eligible
invention. See Alice, 134 S. Ct. at 2360; Mayo, 566 U.S. at 84–85 (citing
Gottschalk v. Benson, 409 U.S. 63, 64–65, 71 (1972)). In Alice, the
Supreme Court rejected the notion that claims reciting specific hardware
necessarily satisfy § 101’s requirements. 134 S. Ct. at 2360.
Various courts have held that claims reciting concrete, tangible
components did not pass muster under § 101. As an example, in TLI
Communications, the Federal Circuit decided that claims reciting a
“telephone unit,” a “digital pick up unit” for “recording images” (a
digital camera), and a “server” for “storing the digital images” were directed
to an abstract idea and failed to satisfy § 101’s requirements. 823 F.3d
at 610–13. As another example, in RaceTech, LLC v. Kentucky Downs,
LLC, 167 F. Supp. 3d 853, 860–61, 863–64, 867–68 (W.D. Ky. 2016), aff’d,
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676 F. App’x 1009 (Fed. Cir. 2017), the district court ruled that claims
requiring a “video server,” a “game server,” a “gateway,” and “game
terminals” were directed to an abstract idea and failed to satisfy § 101’s
requirements. As a further example, in Planet Bingo, LLC v. VKGS, LLC,
961 F. Supp. 2d 840, 850–51, 853, 857 (W.D. Mich. 2013), aff’d,
576 F. App’x 1005 (Fed. Cir. 2014), the district court ruled that claims
requiring a “computer,” an “input device,” and an “output device” were
directed to an abstract idea and failed to satisfy § 101’s requirements. See
also Multimedia Plus, Inc. v. PlayerLync, LLC, 198 F. Supp. 3d 264,
265–66, 271–72 (S.D.N.Y. 2016) (invalidating under § 101 claims reciting a
“system . . . comprising” a “local computer,” a “first human-computer
interface,” a “remote computer server,” and a “second interface”), aff’d,
2017 WL 3498637, ___ F. App’x ____ (Fed. Cir. Aug. 16, 2017);
CertusView Techs., LLC v. S & N Locating Servs., LLC, 111 F. Supp.
3d 688, 699–700, 724–29 (E.D. Va. 2015) (invalidating under § 101 claims
reciting an “apparatus comprising” a “communication interface,” a “display
device,” a “user input device,” a “memory,” and a “processing unit”), aff’d,
2017 WL 3443246, ___ F. App’x ____ (Fed. Cir. Aug. 11, 2017).
Here, the “transducer, recorder, and digital processor” in claim 19 are
well-understood, routine, and conventional components previously used by
the relevant community. See, e.g., Spec. ¶¶ 54–56, 58, 83, 100–01; Reagor
reference ¶¶ 6, 14, 17–18, 33–35; see also Final Act. 4; Ans. 4–5. For
instance, the Specification describes various prior-art systems with
transducers. Spec. ¶¶ 54–56, 58. In addition, the Specification states,
“Digital signal processing techniques are also well known in the art.” Id.
¶ 83. Accordingly, the additional elements in claim 19 do not provide an
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“inventive concept” that transforms the nature of the claim into a patent-
eligible invention.
Further, Appellant asserts that claim 19 includes “specific
limitation[s] that confine the claim to a particular useful application” as well
as “other meaningful limitations.” Reply Br. 11; see App. Br. 32. But
“limiting an abstract idea to one field of use” does not impart patent
eligibility. See Bilski v. Kappos, 561 U.S. 593, 612 (2010); see also Parker
v. Flook, 437 U.S. 584, 589–90 (1978); Affinity Labs, 838 F.3d at 1259.
SUMMARY FOR INDEPENDENT CLAIM 19
For the reasons discussed above, Appellant’s arguments have not
persuaded us that the Examiner erred in rejecting claim 19 under § 101.
Hence, we sustain the rejection of claim 19.
DEPENDENT CLAIMS 20, 21, 24 AND 25
Claims 20, 21, 24, and 25 depend from claim 19. Appellant does not
make any separate substantive patentability arguments for these dependent
claims. App. Br. 26–35; Reply Br. 4–13. Because Appellant does not argue
the claims separately, we sustain the § 101 rejection of claims 20, 21, 24,
and 25 for the same reasons as claim 19. See 37 C.F.R. § 41.37(c)(1)(iv).
DEPENDENT CLAIMS 23 AND 26–28
Appellant argues that dependent claims 23 and 26–28 include
“significantly more” than a patent-ineligible concept because they each
recite the “additional limitations of a particular machine.” Reply Br. 12; see
App. Br. 33. For example, claim 23 recites “generating [acoustic events] . . .
using a hammer or battering ram powered by a human.” App. Br. 48
(Claims App.). As in claim 19, however, the additional elements in
claims 23 and 26–28 are well-understood, routine, and conventional
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components previously used by the relevant community. See, e.g., Spec.
¶¶ 6–7, 11, 58, 87–90, 124, 126; Reagor reference ¶¶ 10, 33, 39. For
instance, the Specification notes that during the 2002 Quecreek mine disaster
trapped miners “bang[ed] on the rock ceiling with a hammer” and rescuers
“tapp[ed] on the drill shaft with a hammer.” See Spec. ¶¶ 3–8. Accordingly,
the additional elements in claims 23 and 26–28 do not provide an “inventive
concept” that transforms the nature of the claims into a patent-eligible
invention.
INDEPENDENT CLAIM 29 AND DEPENDENT CLAIM 30
Appellant argues that independent claim 29 and dependent claim 30
recite patent-eligible subject matter “for at least the same reasons as
claim 19” and because they include “additional particular machine
limitations,” i.e., “a personal electronic device” (claim 29) and “a vibrator,
a pile driver, a jack hammer, a low frequency pipe organ, and a resonant
cavity” (claim 30). Reply Br. 13; see App. Br. 35. As in claim 19, however,
the additional elements in claims 29 and 30 are well-understood, routine, and
conventional components previously used by the relevant community for
performing functions specified in the claims. See, e.g., Spec. ¶¶ 59–60, 87,
91–93, 95; Barrett reference 14:21–63, Fig. 1 (bi-directional pager/short-
message device 106), Fig. 2 (transceiver module 202), Fig. 9 (mobile
location transponder 920). Accordingly, the additional elements in
claims 29 and 30 do not provide an “inventive concept” that transforms the
nature of the claims into a patent-eligible invention.
The § 103(a) Rejection of Claims 19–21 and 23–30
Appellant argues that the Examiner erred in rejecting claims 19
and 29 under § 103(a) because the references do not teach or suggest steps
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(a)(i)–(a)(iv), including “determining a first differential time period . . .
[that] is a repetition period” and “determining a second differential time
period . . . [that] is a communications window.” See App. Br. 38–39, 45.
Appellant asserts that the claimed invention results in “a significant
improvement in the signal-to-noise ratio by windowing the time in which the
signals are transmitted.” Id. at 40. Appellant also asserts that “the Examiner
has not clearly articulated how the MINER Act would be modified” by the
secondary references to produce the claimed invention. Id. at 42.
The Examiner relies on Easysurf for teaching “determining a first
differential time period . . . [that] is a repetition period” and “determining a
second differential time period . . . [that] is a communications window.”
Final Act. 6. Easysurf discloses (1) a time-duration calculator that
determines the amount of time between a user-entered start time and a user-
entered end time and (2) a clock-math calculator that determines an end time
based on a user-entered start time and a user-entered time increment or
decrement. Easysurf 1–2. Easysurf does not describe a repetition period or
a communications window. Id.
Based on the record before us, the Examiner has not adequately
explained how the cited portions of Easysurf teach or suggest “determining a
first differential time period . . . [that] is a repetition period” and
“determining a second differential time period . . . [that] is a
communications window.” See Final Act. 6; Ans. 6. Thus, we do not
sustain the obviousness rejection of claims 19 and 29.
Claims 20, 21, and 23–28 depend from claim 19, and claim 30
depends from claim 29. For the reasons discussed regarding claims 19
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and 29, we do not sustain the obviousness rejection of claims 20, 21, 23–28,
and 30.
Because we do not sustain the obviousness rejection for the reasons
discussed above, we need not address Appellant’s additional arguments
regarding Examiner error. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421,
1423 (Fed. Cir. 1984) (explaining that an administrative agency may render
a decision based on “a single dispositive issue”).

DECISION
We reverse the rejection of claims 19–21 and 23–30 under 35 U.S.C.
§ 112 ¶ 1.
We affirm the rejection of claims 19–21 and 23–30 under 35 U.S.C.
§ 101.
We reverse the rejection of claims 19–21 and 23–30 under 35 U.S.C.
§ 103(a).
Because we affirm at least one ground of rejection for each claim on
appeal, we affirm the Examiner’s decision to reject all of the claims on
appeal.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See
37 C.F.R. § 41.50(f).

AFFIRMED