Ex Parte Yücel et al

Patent Trial and Appeal Board

Aug 28, 2017

13285340 (P.T.A.B. Aug. 28, 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.
13/285,340 10/31/2011 Sermet Ylicel 4752 9058
21834 7590 08/30/2017
Tvsvpr Reok F.vans PT T C
EXAMINER
225 S. 6th Street, Suite 1750
MINNEAPOLIS, MN 55402
SMITH, JELANI A
ART UNIT PAPER NUMBER
3662
NOTIFICATION DATE DELIVERY MODE
08/30/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docket@bitlaw.com
dtysver@bitlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SERMET YUCEL, WILLIAM D. HEADRICK,
SAMUEL E. MARTIN, M. GERMANA PATERLINI, and
JON M. MAGNUSON
Appeal 2016-003173
Application 13/285,3401
Technology Center 3600
Before ALLEN R. MacDONALD, NABEEL U. KHAN, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
KHAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1—39. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify FuelMiner, Inc. as the real party in interest. App. Br. 2.
Appeal 2016-003173
Application 13/285,340
STATEMENT OF THE CASE
The Invention
Appellants’ invention relates to a physical dynamics model to
simulate a vehicle being driven by a driver along a virtual route,
possibly under specified weather conditions. A score for a route
may be calculated from estimations, based on the simulation, of
fuel efficiency, vehicle drivability, and/or time for completing
the route. . . . Scores for the routes from simulations may be
compared to select an optimum route.
Abstract.
Exemplary independent claim 1 is reproduced below.
1. A method, comprising:
a) receiving, through a hardware interface of a
communication system
(i) driver data, which includes hardware
measurements specifying a plurality of operational
choices affecting fuel consumption, made by a first driver
while operating a first vehicle, wherein the operational
choices are obtained from a monitoring system in the
respective vehicle,
(ii) vehicle data, which includes hardware
measurements of functional components obtained from a
respective monitoring system of a second vehicle, not
necessarily distinct from the first vehicle, during its
operation, and
(iii) route data, specifying a first route and a second
route;
b) accessing a first driver model that specifies operational
choices by a first virtual driver, wherein the operational choices
are based on the driver data;
c) accessing a first vehicle model that specifies a set of
functional components in a virtual vehicle, wherein operation of
the functional components is based on the vehicle data;
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d) selecting a reference function for scoring a simulation
of operation of a vehicle by a driver along a virtual route;
e) using a computer processing system, applying a
physical dynamics model, which takes into account a time-
dependent loss of a propulsive quantity between an engine and a
transmission of the vehicle, to
(i) perform a first simulation, which simulates
operation of the first virtual vehicle by the first virtual
driver along the first route, and
(ii) obtain a first route score by applying the
reference function to the first simulation;
f) using the processing system, applying the physical
dynamics model to
(i) perform a second simulation, which simulates
operation of the first virtual vehicle by the first virtual
driver along the second route, and
(ii) obtain a second route score by applying the
reference function to the second simulation; and
g) transmitting through the hardware interface a
recommendation that specifies a preferred route, wherein the
recommendation is based upon ranking the first and the second
route scores.
Rejection
Claims 1—39 stand rejected under § 35 U.S.C. § 101 as directed to
patent ineligible subject matter. Final Act. 2^4.
ANALYSIS
A patent may be obtained for “any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof.” 35 U.S.C. § 101. The Supreme Court has held that this provision
contains an important implicit exception for certain patent ineligible
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Application 13/285,340
concepts: laws of nature, natural phenomena, and abstract ideas. Alice Corp.
Pty. Ltd. v. CLSBankInt’l, 134 S. Ct. 2347, 2354 (2014); see also Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293
(2012). To determine patentable subject matter, the Supreme Court has set
forth a two part test: (1) whether the claims are directed to a patent-ineligible
concept and, if so, (2) whether, when the claim elements are considered
“individually and ‘as an ordered combination,’” there is an inventive concept
present i.e., an element or combination of elements that is “sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself.” Alice, 134 S. Ct. at 2355 (alteration in
original) (quoting Mayo, 132 S. Ct. at 1294).
Analyzing the claims under the two-step framework laid out in
Alice/Mayo, the Examiner finds the claims are directed to patent ineligible
subject matter. See Final Act. 2-A. Specifically, under step one of the
Alice/Mayo framework, the Examiner finds claims 1—39 are directed to
algorithms and simulations which are merely mathematical relationships and
thus directed to an abstract idea. Id. at 3. Under the second step of the
Alice/Mayo framework the Examiner finds “[t]he claims do not include
additional elements that are sufficient to amount to significantly more than
the judicial exception.” Id. In particular, the Examiner finds that
“[g]enerically recited computer elements do not add a meaningful limitation
to the abstract idea.” Id.
Appellants argue the claims are not directed to an abstract idea, but
instead “that their ‘particular end or goal’ is reducing, using a creative
methodology, fuel consumption by real-world vehicles. . . . [And] energy
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Application 13/285,340
self-sufficiency, and reduction of emissions of greenhouse gases, carbon
monoxide, particulates, and nitrous oxide.” App. Br. 10.
Appellants further argue that even if the claims “were directed to an
abstract idea, they clearly constitute ‘something more.’” Id. at 11. In
particular, Appellants argue: (i) the claims are directed to “a specific,
limited, concrete problem” and that there are other ways of simulating a
vehicle, thus, the claims do not pre-empt fundamental building blocks of
science or technology; (ii) the simulator is based on hundreds of equations
and algorithms whereas the prior cases in which the Supreme Court or
Federal Circuit has found inventions patent ineligible involved a single
atomic abstract idea; (iii) the claimed invention improves an existing
technological process, namely the choice of route selection so as to reduce
fuel consumption; (iv) neither the Supreme Court nor the Federal Circuit has
considered whether a simulator that models a real machine, such as here, is
patent eligible; (v) the claimed invention transforms data collected from real
vehicles and drivers into a simulator that takes into account fuel efficiency
and drivability. App. Br. 11—13; see also Reply Br. 3—5; 7—9.
Step One of the Alice/Mayo Framework
We are unpersuaded by Appellants’ arguments. Turning to step one
of the Alice/Mayo framework, we find the Examiner did not err in
concluding the claims are directed to a judicially recognized abstract idea.
Claim 1 is directed to a simulation of a vehicle being driven by a particular
driver along two routes, where the vehicle and driver are represented by
virtual mathematical models, and where the simulation recommends one of
the two routes based upon scores generated during the simulation. The
Specification describes the claimed invention as a model that “uses
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mathematical and physical equations, which may be approximated (e.g.,
discretized or otherwise simplified), to calculate or estimate indicia of driver
performance.” Spec. 120. We, therefore, agree with the Examiner that the
claims are directed to a set of mathematical relationships or formulas and
thus to an abstract idea. See Parker v. Flook, 437 U.S. 584, 595 (1978)
(noting that ‘“if a claim is directed essentially to a method of calculating,
using a mathematical formula, even if the solution is for a specific purpose,
the claimed method is nonstatutory. ”’)
Further, the claimed steps of receiving data (driver, vehicle, and route
data), simulating the operation of virtual vehicle on a route by applying a
physical dynamics model to a mathematical model of the vehicle, and
scoring the performance of the vehicle using a reference function can all be
performed by human thought alone or by a human using a pen and paper.
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir.
2011) (“[A] method that can be performed by human thought alone is
merely an abstract idea and is not patent-eligible under § 101.”) The mere
mention of certain claimed computer hardware components (e.g. “a
hardware interface” and “computer processing system”) does not impose
sufficiently meaningful limitations on claim scope beyond these mental
steps. Id. at 1372—73, 1375 (“That purely mental processes can be
unpatentable, even when performed by a computer, was precisely the
holding of the Supreme Court in Gottschalk v. Benson”).
Appellants’ argument that the claims are directed to “reducing, using
a creative methodology, fuel consumption by real-world vehicles. . . . [And]
energy self-sufficiency, and reduction of emissions of greenhouse gases,
carbon monoxide, particulates, and nitrous oxide,” (App. Br. 10) is not
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commensurate with the scope of the claims, which are not limited to
reducing fuel consumption, or reduction of greenhouse gases. Instead, the
claims broadly encompass a multitude of reference functions by which to
score the operation of the vehicle on a proposed route. Even if the claimed
invention, using an appropriate reference function, can be used to reduce
fuel consumption or greenhouse gas emission, the claims themselves are
directed not at these goals, but rather to the simulation and mathematical
models themselves.
Step Two of Alice/Mayo Framework
Turning now to the second step of the Alice/Mayo framework, we
agree with the Examiner that claimed steps, when viewed individually and
as an ordered combination, do not transform the claimed invention to
something significantly more than the abstract idea. As explained above, the
claims are directed to mathematical relationships and formulas which can be
solved using mental steps. Other than these recited steps, the claims
additionally recite certain computer hardware elements, such as a “hardware
interface” for receiving data, and a “computer,” “computer processing
system,” or a “processor” for running the simulation or applying the recited
models. We find the recitation of these hardware elements to be directed at
generic computer elements used in their routine and conventional manner.
As our reviewing court has explained, “[i]t is well-settled that mere
recitation of concrete, tangible components is insufficient to confer patent
eligibility to an otherwise abstract idea. Rather, the components must
involve more than performance of ‘well-understood, routine, conventional
activities] ’ previously known to the industry.” In re TLI Comms. LLC
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Patent Litigation, 823 F.3d 607, 613 (Fed. Cir. 2016) (quoting Alice, 134 S.
Ct. at 2359)).
Appellants’ argument that the claims do not pre-empt fundamental
building blocks of science or technology because they are directed to “a
specific, limited, concrete problem” is unpersuasive. App. Br. 11. “While
preemption may signal patent ineligible subject matter, the absence of
complete preemption does not demonstrate patent eligibility.” Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
Moreover, “[wjhere a patent’s claims are deemed only to disclose patent
ineligible subject matter under the Mayo framework, as they are in this case,
preemption concerns are fully addressed and made moot.” OIP Techs.,
Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362—63 (Fed. Cir.), cert, denied,
136 S. Ct. 701 (2015).
Appellants’ argument that prior Supreme Court cases, such as Flook,
Diehr, and Benson, are inapplicable to the claimed invention because the
prior cases involved only a single atomic abstract idea, whereas the
simulation and models claimed here involve hundreds of equations and
algorithms, is also unpersuasive. Appellants have not identified anything in
any prior Supreme Court cases that stands for the proposition that the use of
multiple formulas or equations, rather than a single equation, somehow
transforms a claim, otherwise directed to an abstract idea, to something more
than the abstract idea.
Appellants argue that the neither the Supreme Court nor the Federal
Circuit has addressed the patent eligibility of an invention directed at a
simulation or model, and therefore the “USPTO has no business extending
the abstract idea judicial exception into [this] new territory.” Reply Br. 7;
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see also App. Br. 12. Appellants overlook Application ofSarkar, 588 F.2d
1330 (CCPA 1978) in which the Court of Customs and Patent Appeals (the
immediate predecessor to The Court of Appeals for the Federal Circuit)2
found an invention directed at mathematically modeling an open channel,
such as a natural stream or artificial waterway, as directed to patent
ineligible subject matter. The invention in that case, as here, involved
multiple mathematical equations and data gathering steps. Sarkar, 588 F.2d
at 1331. The court found the claimed mathematical model of an open
channel as directed to mathematical exercises and thus to unpatentable
mental processes. Id. at 1333—34, 1336. We find Sarkar to be directly
applicable to the mathematical models and simulations of vehicles
encompassed by the claims at issue in this case.
Appellants’ argument that the claims are more than an abstract idea
because “[r]eal data from real operating machines and drivers are input”
(Reply Br. 8) into the simulation and because this data “will be substantial,
not inconsequential pre-solution activity” (Reply Br. 5) is unpersuasive. The
fact that the data being input into the simulation originates from real vehicles
or real drivers does not transform the claimed simulation into something
more than the simulation itself. The claimed data, which represents
hardware measurements of driver operations and vehicles, is itself an
abstraction, meant to represent a tangible entity, but is not itself a tangible
entity. And receiving and inputting data into mathematical equations to
2 The Court of Appeals for the Federal Circuit adopted as precedent the
holdings of its predecessor courts, the United States Court of Claims and the
United States Court of Customs and Patent Appeals, and may only overrule
those prior holdings by sitting in banc. South Corp. v. United States, 690
F.2d 1368, 1370 (Fed. Cir. 1982).
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establish values for variables used in those equations is the kind of pre­
solution activity that does not transform a claimed abstract idea to something
more. Sarkar at 1335 (“Given that the method of solving a mathematical
equation may not be the subject of patent protection, it follows that the
addition of the old and necessary antecedent steps of establishing values for
the variables in the equation cannot convert the unpatentable method to
patentable subject matter. ... No mathematical equation can be used, as a
practical matter, without establishing and substituting values for the
variables expressed therein. Substitution of values dictated by the formula
has thus been viewed as a form of mathematical step.” {internal quotations
omitted)).
CONCLUSION
We find the claims, which are directed to simulating and modeling
vehicle operation, to be directed to mathematical relationships and formulas
and thus to patent ineligible subject matter. Accordingly, we sustain the
Examiner’s rejection of claims 1—39.
DECISION
The Examiner’s rejection of claims 1—39 under 35 U.S.C. § 101 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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