Ex Parte Perkins

Patent Trial and Appeal Board

Aug 31, 2018

14253833 (P.T.A.B. Aug. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/253,833 04/15/2014
26379 7590 09/05/2018
DLA PIPER LLP (US )
2000 UNIVERSITY A VENUE
EAST PALO ALTO, CA 94303-2248
FIRST NAMED INVENTOR
Matthew R. Perkins
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.
388938-991185 1023
EXAMINER
KANAAN, MAROUN P
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
09/05/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
PatentDocketing US-PaloAlto@dlapiper.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW R. PERKINS
Appeal2017-006075
Application 14/253,833
Technology Center 3600
Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
JOHN P. PINKERTON, Administrative Patent Judges.
SAADAT, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-17. 2 We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 According to Appellant, the real party in interest is A warepoint
Corporation. App. Br. 1.
2 Appellant indicates they are unaware of any other related appeals. See
App. Br. 1. However, we have determined that Appeal 2017-006180
(Application 13/798,138) and Appeal 2018-004901 (Application
13/798,081) are related to this appeal and are directed to the same underlying
inventions and issues. See 37 C.F.R. § 41.37(c)(ii).
Appeal2017-006075
Application 14/253,833
STATEMENT OF THE CASE
Appellant's invention relates to a system and method for analyzing an
interaction between objects such as people (Spec. ,r 1 ). Exemplary claim 1
under appeal reads as follows:
1. A system for analyzing an interaction between objects
bearing wireless communication devices within a facility, the
system comprising:
a mesh network comprising a plurality of sensors located
within the facility;
an information engine in communication with the plurality
of sensors;
a plurality of first objects, each of the plurality of first
objects comprising a first wireless communication device; and
a plurality of second objects, each of the plurality of
second objects comprising a second wireless communication
device;
wherein the mesh network is utilized for infrastructure-
based real-time location tracking of the plurality of first objects
and the plurality of second objects in the facility, each sensor of
the plurality of sensors communicate with other sensors of the
plurality of sensors utilizing a wireless communication format,
the mesh network receiving the wireless signal from each of the
plurality of first wireless communication device and the mesh
network receiving the wireless signal from each of the plurality
of second wireless communication device;
wherein the information engine is configured to analyze
an interaction between a first object and a second object having
an interaction based on a plurality of factors comprising at least
a position location of the interaction, an identification of the first
object, an identification of the second object, and a duration of
the interaction.
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Application 14/253,833
REFERENCES and REJECTIONS
Claims 1-17 stand rejected under 35 U.S.C. § 101 as not being
directed to patent-eligible subject matter. See Final Act. 2.
Claims 1-17 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Keever et al. (US 2007/0143162 Al; published June 21,
2007) ("Keever") and Breazeale, Jr. (US 2009/0204434 Al; published Aug.
13, 2009) ("Breazeale"). See Final Act. 3-5.
PRINCIPLES OF LAW
Patent-Eligible Subject Matter
The Supreme Court has set forth "a framework for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts." Alice
Corp. Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347, 2355 (2014) (citing Mayo
Collaborative Services v. Prometheus Labs., Inc., 566 U.S. 66, 72-73
(2012)). According to this framework, a determination is made to consider
whether the claims at issue are directed to one of those concepts (i.e., laws of
nature, natural phenomena, and abstract ideas). See id. If so, a further
determination must be made to consider the elements of each claim both
individually and "as an ordered combination" to determine whether the
additional elements "transform the nature of the claim" into a patent-eligible
application. Id. (internal quotation marks and citation omitted). "The
question of whether a claim element or combination of elements is well-
understood, routine and conventional to a skilled artisan in the relevant field
is a question of fact." Berkheimer v. HP Inc., 881 F.3d 1360, 1368
(Fed. Cir. 2018).
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Application 14/253,833
Obviousness
The Supreme Court has rejected the rigid requirement of
demonstrating a teaching, suggestion, or motivation in the references to
show obviousness. See KSR Int'! Co. v. Teleflex Co., 550 U.S. 398, 415-16
(2007); see also In re Ethicon, Inc., 844 F.3d 1344, 1350 (Fed. Cir. 2017)
("KSR directs that an explicit teaching, suggestion, or motivation in the
references is not necessary to support a conclusion of obviousness").
Further, one cannot show non-obviousness by attacking references
individually when the rejection is based on a combination of references. See
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re
Keller, 642 F.2d 413,425 (CCPA 1981).
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner erred. We are not persuaded the Examiner
erred, and we adopt as our own the findings and reasons set forth by the
Examiner. See Final Act. 2---6; see also Ans. 2-8. We highlight and address
specific findings and arguments for emphasis as follows.
Rejection Under 35 U.S.C. § 101
Independent claims 1, 11, and 15 recite a system and method for
analyzing an interaction between objects bearing wireless communication
devices within a facility, and are, therefore, directed to one of the four
statutory categories of patentability enumerated by 35 U.S.C. § 101 (process,
machine, manufacture, or composition of matter). Applying the first part of
the Alice analysis, the Examiner finds the claims are directed to the abstract
idea of tracking objects in a facility by comparing an interaction between
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Application 14/253,833
objects and using rules to analyze the interaction. See Ans. 2-3. As found
by the Examiner, the claims recite a system and method for performing steps
that can be performed mentally, which indicates that the concept is "'an idea
of itself,"' which is one of the four types of abstract ideas set forth in Alice.
See Ans. 3 (internal citation omitted). As further found by the Examiner, the
recited steps correspond to concepts identified as abstract ideas by the
courts, such as comparing new and stored information (i.e., comparing an
interaction between objects) and using rules to identify options (i.e., analyze
the interaction based on rules including a position, an identification of
objects, and a duration of the interaction) as seen in SmartGene, Inc. v.
Advanced Biological Laboratories, SA, 555 Fed. Appx. 950, 954--55
(Fed. Cir. 2014). See Ans. 3. Applying the second part of the Alice analysis,
the Examiner finds the claims do not include additional elements that are
sufficient to amount to significantly more than the abstract idea because the
additional computer elements, which are recited at a high level of generality,
provide conventional computer functions that do not add meaningful limits
to practicing the abstract idea. See Ans. 3--4. More specifically, as found by
the Examiner, the recited mesh network, information engine, sensors, and
wireless communication device are recited at a high level of generality and
are recited as performing generic computer functions routinely used in
computer applications. See Ans. 3--4. 3
3 Although the Examiner's findings are explicitly directed to claim 1, the
Examiner further finds the additional claim elements of dependent claims
2-10 fail to establish that the claims are not directed to an abstract idea
without significantly more, and the Examiner's findings also apply to claims
11-17. See Ans. 5.
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Application 14/253,833
Beginning with the first step of the Alice analysis, we must determine
"whether the claims at issue are directed to one of those patent-ineligible
concepts," including abstract ideas. Alice, 134 S. Ct. at 2355. In performing
this determination, we ask whether the focus of the claims is on a specific
asserted improvement in computer capabilities or, instead, on a process that
qualifies as an "abstract idea" for which computers are invoked merely as a
tool. Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36
(Fed. Cir. 2016) (citing Alice, 134 S. Ct. at2358-59).
Appellant contends the claims are not directed to an abstract idea for
several reasons. See App. Br. 9. First, Appellant argues the claims are not
directed to a fundamental economic practice, a method for organizing human
activity, an idea in itself, or a mathematical relationship. See id. Second,
according to Appellant, the claims are similar to the claims at issue in DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) because
the claims address a problem that did not exist prior to the existence of the
underlying technology and are directed to a technology solution that also did
not exist prior to the existence of the underlying technology. See id. Third,
Appellant argues the Final Office Action fails to cite any case law or court
decision supporting the finding that the claims are directed to an abstract
idea. See App. Br. 9-10. Fourth, according to Appellant, the Final Office
Action broadly states the alleged abstract idea and ignores the claim
language as well as all of the claim elements. See App. Br. 10. In the Reply
Brief, Appellant further argues the reliance on SmartGene in the Examiner's
Answer is not proper because SmartGene is a non-precedential decision and
the facts of SmartGene do not uniquely match the facts in the present appeal.
See Reply Br. 1. Appellant also argues that the claims provide a technical
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solution directed to improving an existing technological process, and thus,
like the claims in McRO, Inc. v. Bandai Namco Games America Inc.,
837 F.3d 1299 (Fed. Cir. 2016), the claims are patent-eligible. See
Reply Br. 2.
We are not persuaded by Appellant's arguments. Considering the
recited elements of the claims in light of Appellant's Specification, we agree
with the Examiner's findings that the claims are directed to a method and
system for performing the steps of tracking objects and analyzing an
interaction between a first object and a second object. See Ans. 3. We
further agree with the Examiner that the recited steps can be performed
mentally, and thus, the claims are directed to "' an idea of itself,"' one of the
four types of abstract idea set forth in Alice. See id.; see also Alice,
134 S. Ct at 2355 ("[a]n idea of itself is not patentable" (internal quotation
marks and citation omitted)). Based on the recited elements, the claims are
directed to tracking and collecting location information and analyzing the
collected location information, which is an idea of itself and which is similar
to abstract ideas previously identified by courts. See Content Extraction
& Transmission LLC v. Wells Fargo Bank, Nat'! Ass 'n, 776 F.3d 1343, 1347
(Fed. Cir. 2014) (holding that claims drawn to collecting data, recognizing
certain data within the collected data set, and storing the recognized data in
memory are directed to an abstract idea); see also Automated Tracking
Solutions LLC v. Coca-Cola Co., 723 Fed.Appx. 989, 993 (Fed. Cir. 2018)
(holding that claims directed to systems for locating, identifying and/or
tracking of an object using RFID components are directed to an abstract
idea).
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Appellant's argument that the claims are similar to the claims in DDR
Holdings, is not persuasive. Appellant provides no technical reasoning or
analysis as to why the claims are similar to the claims at issue in DDR
Holdings. In DDR Holdings, the court determined that the claims at issue
were necessarily rooted in computer technology in order to address the
Internet-centric problem of how to provide user access to computer-
implemented applications over the Internet. DDR Holdings, 773 F.3d at
1257. In contrast, the functions performed by the claimed system (i.e.,
tracking objects and analyzing an interaction between a first object and a
second object), are not necessarily rooted in computer technology, as the
aforementioned functions could also occur outside the context of computer
technology (e.g., if the aforementioned functions were implemented using
pen and paper).
Further, Appellant's argument that the claims are directed to a
technical solution that improves an existing technologic process, similar to
the claims at issue in McRO, is also not persuasive. In McRO, the court held
the claims were patent-eligible because the claims recited specific computer-
implemented rules that allowed a computer to produce accurate and realistic
lip synchronization and facial expressions in animated characters that
previously could only be produced by human animators. See McRO,
837 F.3d at 1313. However, the present claims fail to recite the technical
details that describe how a computer system realizes an operational
improvement via the claimed functionality. Thus, contrary to Appellant's
assertion, the claims fail to recite the improvement to the computer system
that Appellant argues the claims are directed to.
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Application 14/253,833
Because we conclude that the claims are directed to an abstract idea,
we tum to the next step of the Alice analysis. In step two, as previously
discussed, we consider the elements of the claims "individually and 'as an
ordered combination'" to determine whether the additional elements
"'transform the nature of the claim' into a patent-eligible application."
Alice, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 78).
Here, Appellant argues the claims are directed to an improvement in a
technical field (i.e., a sales marketplace) in which the claims recite various
elements that provide an improvement in technology (i.e., the mesh network
and the information engine) that did not exist in the prior art, and, thus, the
claims are similar to the claims at issue in Enfzsh. See App. Br. 10.
Appellant further argues the claims are directed to a technical problem (i.e.,
tracking assets in a facility) and a technical solution (i.e., using wireless
communications and an information engine) that did not exist before the
existence of the Internet and computer network, and, thus, the claims are
similar to the claims at issue in DDR Holdings. See App. Br. 10-11.
We are not persuaded that the Examiner erred. Considering the
recited elements of the claims in light of Appellant's Specification, we agree
with the Examiner's findings that the claimed mesh network, information
engine, sensors, and wireless communication devices are recited with a high
level of generality and are described as performing generic computer
functions routinely used in computer applications. See Ans. 4. Evidence
supporting the Examiner's finding that the recited generic computer
functions performed by the claimed mesh network and information engine is
found in Appellant's Specification, which discloses that the claimed mesh
network "is preferably a 802.15.4 ZIGBEE wireless sensor network" and
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that the claimed mesh network "includes multiple plug-in sensors ... [ where
an] information engine is in communication with the mesh network." See
id.; see also Spec. ,r 19. Evidence supporting the Examiner's finding that the
recited generic computer functions performed by the claimed sensors and
wireless communication devices are well-understood, routine and
conventional (see Ans. 4) is also found in Appellant's Specification, which
discloses that the prior art includes various tracking systems and uses of
near-field communication devices, and further includes examples of the
claimed system components (e.g., sensors and wireless communication
devices). See, e.g., Spec. ,r,r 4--15, 34, 36-37, 39. Therefore, considering the
elements of the claims, both individually and in combination, we conclude
there are no additional elements that transform the nature of the claims into a
patent-eligible application. See Alice, 134 S. Ct. at 2355.
Further, we disagree with Appellant's contention that the claims are
directed to a specific improvement in the way computers operate, similar to
the claims at issue in Enfish, rather than an abstract idea. In Enfish, in
holding that the claims were patent-eligible, the court stated that the claims
recited a specific data structure (i.e., a self-referential table for a computer
database) that allowed the computer database to realize specific operational
improvements (i.e., increased flexibility, faster search times, and smaller
memory requirements). See Enfish, 822 F.3d at 1337. Although Appellant
argues the claims are directed to an improvement in technology (i.e., the
mesh network and the information engine) that did not exist in the prior art,
the claims fail to recite the technical details that describe how a computer
system realizes an operational improvement via the claimed functionality.
Thus, contrary to Appellant's assertion, the claims fail to recite the
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improvement to the computer system that Appellant argues the claims are
directed to. Further, as previously described, Appellant's Specification
provides evidence that the claimed mesh network and information engine
did exist in the prior art, contrary to Appellant's assertion.
Therefore, we are not persuaded the Examiner erred in finding claims
1-17 recite patent-ineligible subject matter. Accordingly, we sustain the
rejection of claims 1-17 under 35 U.S.C. § 101.
Rejection Under 35 U.S. C. § 103 (a)
Appellant contends the combination of cited references fails to teach
or suggest "a mesh network comprising a plurality of sensors located within
the facility," and "an information engine in communication with the plurality
of sensors," as recited in claim 1, and similarly recited in claims 11 and 15.
See App. Br. 11. As argued by Appellant, neither Keever nor Breazeale
teaches or suggests a mesh network. See id.
We are not persuaded by Appellant's contention. Consistent with the
Examiner's findings, Keever discloses a radio-frequency identification
("RFID") system that includes multiple RFID readers and multiple RFID
tags attached to tracked items. See Final Act. 3 ( citing Keever ,r,r 12, 54 );
see also Keever ,r,r 39--41, 50. We agree with the Examiner that neither
Appellant's claims, nor Appellant's Specification, provides a definition or
other disclosure that distinguishes the claimed "mesh network" from
Keever's RFID system, as Appellant's Specification states that "[t]he mesh
network is preferably a ... wireless sensor network." See Ans. 7; see also
Spec. ,r 19. Further, Breazeale also discloses a tracking system that includes
proximity sensors positioned throughout a facility to track movement of
patients, caregivers, and objects in the facility. See Breazeale ,r,r 32, 34.
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Thus, we agree with the Examiner that the combination of Keever and
Breazeale teaches or suggests "a mesh network comprising a plurality of
sensors located within the facility," and "an information engine in
communication with the plurality of sensors," as recited in claim 1, and
similarly recited in claims 11 and 15.
Appellant also contends the combination of cited references fails to
teach or suggest
wherein the information engine is configured to analyze
an interaction between a first object and a second object having
an interaction based on a plurality of factors comprising at least
a position location of the interaction, an identification of the first
object, an identification of the second object, and a duration of
the interaction,
as recited in claim 1, and similarly recited in claims 11 and 15. See
App. Br. 11. As argued by Appellant, Breazeale merely discloses healthcare
interactions, but fails to teach or suggest the claimed "having an interaction
based on a plurality of factors comprising at least a position location of the
interaction, an identification of the first object, an identification of the
second object, and a duration of the interaction." See id.
We are not persuaded by this contention either. Consistent with the
Examiner's findings, Breazeale discloses a system for tracking interactions
between healthcare patients, caregivers, and other objects, where the system
obtains location-time data automatically generated by a mobile electronic
device associated with a patient, caregiver, or object, and where the location-
time data can indicate relevant location and duration information (e.g., a
location of a patient's residence, a location of a caregiver, and an amount of
time a caregiver spends at or near a patient's residence). See Final Act. 4
(citing Breazeale ,r,r 6, 8, 10-11); see also Ans. 7-8 (citing Breazeale ,r,r 8,
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10, 32). Thus, we agree with the Examiner that the combination of Keever
and Breazeale also teaches or suggests
wherein the information engine is configured to analyze
an interaction between a first object and a second object having
an interaction based on a plurality of factors comprising at least
a position location of the interaction, an identification of the first
object, an identification of the second object, and a duration of
the interaction,
as recited in claim 1, and similarly recited in claims 11 and 15.
No separate arguments are presented for the remaining dependent
claims. See App. Br. 11. Therefore, we are not persuaded that the Examiner
erred in finding claims 1-17 unpatentable in light of the cited prior art
references. Accordingly, we sustain the rejection of claims 1-17 under
35 U.S.C. § 103(a).
DECISION
We affirm the Examiner's rejection of claims 1-17 under
35 U.S.C. § 101.
We affirm the Examiner's rejection of claims 1-17 under
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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