Ex Parte Um et al

Patent Trials and Appeals Board

Mar 14, 2019

13171998 - (D) (P.T.A.B. Mar. 14, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/171,998 06/29/2011
84250 7590 03/18/2019
LANDO & ANASTASI, LLP
R2013
ONE MAIN STREET, SUITE 1100
CAMBRIDGE, MA 02142
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Gregory Sechang Um
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.
R2041-702219(10-l 152) 6508
EXAMINER
NGUYEN, CHUONG P
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
03/18/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
DOCKETING@LALaw.COM
CKent@LALaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGORY SECHONG UM and YURY N. GOLUBEV
Appeal2017-009093
Application 13/171,998
Technology Center 3600
Before JAMESON LEE, MICHAEL R. ZECHER, and JUSTIN T. ARBES,
Administrative Patent Judges.
ARBES, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1-20, the only claims pending in the application on appeal. We have
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). 1
We REVERSE.
1 Our decision will make reference to Appellants' Appeal Brief ("Br.," filed
November 22, 2016), the Examiner's Answer ("Ans.," mailed March 7,
2017), and the Final Office Action ("Final Act.," mailed April 21, 2016).
Appeal2017-009093
Application 13/171,998
INVENTION
Appellants' invention is directed to a method of detecting a plasma
depletion in the ionosphere. Spec. ,r 4. "Radio frequency signals
transmitted by satellites (for example, geosynchronous global navigation
satellites) to receivers on the Earth's surface are delayed as they travel
through the Earth's ionosphere." Id. ,r 1. Global positioning system (GPS)
augmented systems estimate and correct for these delays, such as by using a
network of dual frequency GPS receivers at reference stations to estimate
delays, interpolating the measurements to a "predefined set of grid nodes,
referred to as ionospheric grid points (IGPs)," and broadcasting the IGP data
to users. Id. "The intersection of the line of sight from receiver to satellite
and the shell defined by the IGPs is known as the user's ionospheric pierce
point (IPP). A user interpolates the grid node delay to the IPP to obtain an
estimate of the ionospheric delay at the IPP." Id. "[F]luctuations in the
characteristics of the ionosphere," however, can cause errors in these
large-scale delay estimations. Id. Plasma depletions ("strong reductions in
the ionosphere F-region plasma density"), for example, are "small-scale
phenomena, generally seen in only one satellite-user line-of-sight." Id. ,r,r 2,
21. The Specification states that known methods of detecting and
compensating for plasma depletions were unreliable. Id. ,r 22. Appellants'
invention is directed to a method of detecting a plasma depletion by
calculating a "temporal slope of the IGP estimated delay" and a "local
line-of-sight (IPP) temporal slope of delay" and comparing the two temporal
slopes of delay to each other. Id. ,r 24.
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Application 13/171,998
Claim 1 recites:
1. A method of detecting a plasma depletion in the
ionosphere by a global positioning system (GPS) receiver, the
method comprising:
receiving, by an antenna system of the GPS receiver, at
least one GPS signal along a line of sight that passes through at
least a portion of the ionosphere, the at least one GPS signal
including at least two signal components at different
frequencies;
receiving, by the antenna system, broadcast ionosphere
grid point (IGP) data;
extracting, by an initialization module of the
GPS receiver, phase data from the at least one GPS signal to
provide a phase input;
determining, by the initialization module, an
!GP-predicted temporal slope of delay at an ionosphere pierce
point (IPP) along the line of sight based at least in part on the
IGP data;
determining, by the initialization module, a local
temporal slope of delay at the IPP based at least in part on the
phase data; and
determining, by a detector module of the GPS receiver,
whether the portion of the ionosphere through which line of
sight passes is undergoing a plasma depletion based at least in
part on the !GP-predicted temporal slope of delay and the local
temporal slope of delay.
Br. 11 (Claims Appendix).
REJECTION
Claims 1-20 stand rejected as reciting patent-ineligible subject matter
under 35 U.S.C. § 101. Final Act. 2-5; Ans. 3---6.
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Appeal2017-009093
Application 13/171,998
ISSUE
Appellants argue that the Examiner's rejection of claims 1-20 is in
error. Br. 4--10. These arguments present us with the following issue:
Did the Examiner err in concluding that the claims are directed to a
patent-ineligible abstract idea and that there are no additional elements that
transform the nature of the claim into a patent-eligible application?
ANALYSIS
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. E.g., Alice Corp. v. CLS Bank Int '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
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Application 13/171,998
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 (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 191
(1981) ); "tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores" (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
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 187; 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."). Having
said that, 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
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Application 13/171,998
concept' sufficient to 'transform' the claimed abstract idea into a
patent-eligible application." Alice, 573 U.S. at 221 (quotation marks
omitted). "A claim that recites an abstract idea must include 'additional
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.
The PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) ("Guidance"). Under the 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 MPEP § 2106.05(a}-(c), (e}-(h)).
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, conventional" in the field (see
MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Guidance. Specifically, at Step 2A, Prong One of the Guidance, we
evaluate "whether the claim recites a judicial exception." Id. at 54. If so, at
Step 2A, Prong Two, we "evaluate whether the judicial exception is
integrated into a practical application." Id. Then, only if it is determined
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Application 13/171,998
that the claim is directed to a judicial exception, we "evaluate whether the
claim provides an inventive concept" at Step 2B. Id. at 56.
The Examiner concludes that the claims are directed to an abstract
idea because they recite "mathematical relationships / formulas of
organizing information," citing as representative the "determining" steps of
claim 1:
determining, by the initialization module, an
!GP-predicted temporal slope of delay at an ionosphere pierce
point (IPP) along the line of sight based at least in part on the
IGP data;
determining, by the initialization module, a local
temporal slope of delay at the IPP based at least in part on the
phase data; and
determining, by a detector module of the GPS receiver,
whether the portion of the ionosphere through which line of
sight passes is undergoing a plasma depletion based at least in
part on the !GP-predicted temporal slope of delay and the local
temporal slope of delay.
Ans. 3. The Examiner determines that the "initialization module" and
"detector module" of the GPS receiver amount to merely a "generic
computer (i.e. processor)" and the "mathematical operations [they perform]
for determining plasma depletion in the ionosphere are no more than mere
instructions to implement the idea on the generic computer." Id. at 4--5.
Appellants argue that the Examiner erred because, "[ w ]hile
ionosphere depletion is a natural phenomenon and mathematical
relationships are involved in its detection, the claims are not 'directed to' the
natural phenomenon, an abstract idea, or a mathematical relationship or
formula." Br. 5. Specifically, the claims "apply" the mathematical
relationships and represent a "specific method of accurately detecting
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Application 13/171,998
plasma depletion in the ionosphere," which is an "improvement[] in
computer-related technology" and a "specific implementation of a solution
to a [known] problem in the wireless receiver arts." Id. at 6-7 (emphasis
omitted). Appellants further contend that "[t]he plain focus of the claims is
an improvement to receiver functionality, not to economic or other activities
for which a generic processor is used in its ordinary capacity." Id. at 7-8.
We have reviewed the Examiner's rejection in light of Appellants'
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellants.
We are persuaded by Appellants' arguments regarding claims 1-20.
With respect to the first step of the Alice/ Mayo test, claim 1 recites a
method of detecting a plasma depletion comprising (1) receiving a GPS
signal with at least two components at different frequencies, (2) receiving
broadcast IGP data, (3) extracting phase data from the GPS signal,
(4) "determining" an "!GP-predicted temporal slope of delay" based on the
IGP data, (5) "determining" a "local temporal slope of delay" based on the
phase data, and ( 6) "determining ... whether the portion of the ionosphere
through which line of sight passes is undergoing a plasma depletion" based
on the two temporal slopes of delay. 2 Determining the !GP-predicted
2 Independent claims 9 and 18 recite similar limitations. Claim 9 recites
"calculating" the two temporal slopes of delay, "comparing" them to each
other, and "declaring ... a depletion based at least in part on a difference
between" them. Claim 18 recites an initialization module configured to
"determine" the two temporal slopes of delay and a detection module
configured to "detect a plasma depletion ... based on a comparison" of the
two temporal slopes of delay. The Examiner addresses the three claims
Footnote continued on next page.
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Application 13/171,998
temporal slope of delay and local temporal slope of delay are mathematical
calculations, as Appellants acknowledge. See id. at 6 (arguing that"[ w ]hile
mathematical relationships are involved, the claims as a whole are not
directed to mathematical relationships or formulas"); Spec. ,r,r 32-34
(providing exemplary equations by which the "local temporal slope of
delay" may be "computed" and referring to those equations in describing
exemplary calculations of the "grid temporal slope"). Therefore, at Step 2A,
Prong One of the Guidance, we conclude that claim 1 recites mathematical
concepts, and thus an abstract idea.
Although claim 1 recites an abstract idea, "[t]he 'directed to' inquiry
... cannot simply ask whether the claims involve a patent-ineligible concept,
because essentially every routinely patent-eligible claim involving physical
products and actions involves a law of nature and/or natural phenomenon-
after all, they take place in the physical world." Enfzsh, LLC v. Microsoft
Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). "Rather, the 'directed to'
inquiry applies a stage-one filter to claims, considered in light of the
specification, based on whether 'their character as a whole is directed to
excluded subject matter."' Id. ( citations omitted). We must "look to
whether the claims ... focus on a specific means or method that improves
the relevant technology or are instead directed to a result or effect that itself
is the abstract idea and merely invoke generic processes and machinery."
McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed.
Cir. 2016).
together. See Final Act. 2-3; Ans. 3--4. Although we refer herein to the
language of claim 1, our analysis applies equally to claims 9 and 18.
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Application 13/171,998
Therefore, we proceed to Step 2A, Prong Two of the Guidance to
determine whether additional elements of the claim integrate the
mathematical concepts into a practical application, considering the claim as
a whole and giving weight to all additional elements, whether or not they are
conventional. See Guidance 54--55. Such additional elements may reflect
an improvement in the functioning of a computer, or an improvement to
other technology or technical field. Id. We agree with Appellants and
conclude that the elements of the claims reflect a specific improvement in
the functioning of a GPS receiver, specifically the way in which a
GPS receiver detects whether a plasma depletion (a physical phenomenon) is
occurring in the ionosphere at its particular line-of-sight. See Br. 6-7.
Claim 1 recites receiving a GPS signal from which phase data is extracted,
receiving broadcast IGP data, using the IGP data and phase data to
determine the "!GP-predicted temporal slope of delay" and "local temporal
slope of delay," and "determining ... whether the portion of the ionosphere
through which line of sight passes is undergoing a plasma depletion" based
on the two temporal slopes of delay. As Appellants point out, performing
the recited calculations and detecting steps allows the receiver to make a
"more precise determination" of when a plasma depletion is occurring and to
"make additional error correction beyond that achievable from large-scale
ionosphere information alone." See id.
Our conclusion is supported by the Specification, which describes, in
detail, both the overall problem with compensating for ionospheric delay and
the problem of detecting and compensating for plasma depletions in the
ionosphere at a particular line-of-sight. See Spec. ,r,r 1-3, 21. The
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Application 13/171,998
Specification describes the deficiencies with known methods to account for
the latter as follows:
Plasma depletions are small-scale (local) phenomena of
the ionosphere and as a result, receivers on the ground in
different locations "see" different depletion events. Depletions
are not modeled or accounted for in large-scale ionosphere
information. However, many navigation and positioning
systems rely on ground-based receiver data to estimate GPS
satellite signal delay and the presence of depletions can cause
significant large-scale delay errors. Therefore, there is a need
for a method of accurately and reliably detecting plasma
depletions in the ionosphere and removing them before the
large-scale delay estimation.
A number of processes for detecting and compensating
for plasma depletions have been proposed; however, several of
these suffer from high rates of false alarms and misdetections,
and are therefore unreliable ....
Id. ,r,r 21-23, 25. The Specification then describes how the disclosed
method is able to more accurately detect plasma depletions. Id. ,r,r 25,
28-39. These disclosures support the conclusion that the claim elements
improve the functioning of a GPS receiver in detecting plasma depletions.
See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259-60 (Fed.
Cir. 2017) (patent-eligible claims were "directed to a technological
improvement: an enhanced computer memory system," and "the
specification discusses the advantages offered by the technological
improvement"); McRO, 837 F.3d at 1307---08, 1313 (patent-eligible claims
recited "rules that define [an] output morph weight set stream as a function
of phoneme sequence and time of said phoneme sequence," and "[a]s the
specification confirms, the claimed improvement ... is allowing computers
to produce 'accurate and realistic lip synchronization and facial expressions
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in animated characters' that previously could only be produced by human
animators'" (citation omitted)).
Because the additional elements of claim 1 integrate mathematical
concepts into a practical application, we determine that claim 1 is not
directed to an abstract idea. See Guidance, Step 2A, Prong Two. For the
same reasons, each of independent claims 9 and 18, and dependent claims
2-8, 10-17, 19, and 20, also integrates mathematical concepts into a
practical application. Accordingly, we do not sustain the Examiner's
rejection of claims 1-20 under 35 U.S.C. § 101.
CONCLUSION
Appellants have persuaded us of error in the Examiner's decision to
reject claims 1-20 under 35 U.S.C. § 101.
DECISION
For the above reasons, the Examiner's decision to reject claims 1-20
is reversed.
REVERSED
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