Ford Global Technologies, LLC

Patent Trials and Appeals Board

May 7, 2020

2019002995 (P.T.A.B. May. 7, 2020)

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.
14/472,652 08/29/2014 David Chronowski 83452113 8765
28395 7590 05/07/2020
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
CASTRO, PAUL A
ART UNIT PAPER NUMBER
3662
NOTIFICATION DATE DELIVERY MODE
05/07/2020 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@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID CHRONOWSKI, HUSSEIN F. NASRALLAH, and
KEVEN MICHAEL BULLISTER

____________

Appeal 2019-002995
Application 14/472,652
Technology Center 3600
____________

Before ANTON W. FETTING, MICHAEL C. ASTORINO, and
BRUCE T. WIEDER, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks review under 35 U.S.C. § 134 from the Examiner’s
final rejection of claims 9–14. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Ford
Global Technologies, LLC. (Appeal Br. 2.)
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CLAIMED SUBJECT MATTER
Appellant’s invention “generally relate[s] to a method and apparatus
for event data recording (EDR) activation and logging.” (Spec. ¶ 1.)
Claim 9 is the sole independent claim on appeal. It recites:
9. A system comprising:
a processor configured to:
compare sensor data, wirelessly received from a vehicle,
to predetermined sensor thresholds determined based on data
gathered from vehicles in which event data recording (EDR)
previously occurred;
if a threshold is exceeded, issue an instruction for the
vehicle to warn a driver;
responsive to issuing the warning, issue a request to the
vehicle for EDR; and
wirelessly receive data from the vehicle recorded
responsive to the requested EDR.

REJECTIONS
Claims 9–14 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
Claims 9–14 are rejected under 35 U.S.C. § 103 as unpatentable in
view of Davidson (US 2012/0253861 A1, pub. Oct. 4, 2012), Basir
(US 2014/0148972 A1, pub. May 29, 2014), and Gompert
(US 2013/0332004 A1, pub. Dec. 12, 2013).

ANALYSIS
The § 101 rejection
“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
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requirements of this title.” 35 U.S.C. § 101. Section 101, however,
“contains an important implicit exception: Laws of nature, natural
phenomena, and abstract ideas are not patentable.” Alice Corp. Pty. Ltd. v.
CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
Alice applies a two-step framework, earlier set out in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012), “for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.” Alice, 573 U.S. at 217.
Under the two-step framework, it must first be determined if “the
claims at issue are directed to a patent-ineligible concept.” Id. at 218. If the
claims are determined to be directed to a patent-ineligible concept, e.g., an
abstract idea, then the second step of the framework is applied to determine
if “the elements of the claim . . . contain[] an ‘ “inventive concept” ’
sufficient to ‘transform’ the claimed abstract idea into a patent-eligible
application.” Id. at 221 (citing Mayo, 566 U.S. at 72–73, 79).
With regard to step one of the Alice framework, we apply a “directed
to” two-prong test to: 1) evaluate whether the claim recites a judicial
exception, and 2) if the claim recites a judicial exception, evaluate whether
the claim “appl[ies], rel[ies] on, or use[s] the judicial exception in a manner
that imposes a meaningful limit on the judicial exception, such that the claim
is more than a drafting effort designed to monopolize the judicial
exception.” See USPTO, 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50, 54 (Jan. 7, 2019) (hereinafter “2019 Guidance”).
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Here, the Examiner determines that “[c]laim 9 is directed to
comparing, organizing, and transmitting information (compare sensor data,
issue an instruction, issue a request, and receive data) for processing data.”
(Final Action 4.)
Appellant argues that
the Examiner fails to demonstrate or state, backed by clear and
convincing evidence, a supported conclusion that the whole
concept of the claims is routine - i.e., that it is a routine practice
to wirelessly receive vehicle sensor data, warn drivers based on
thresholds being exceeded, and request and receive an EDR
responsive to the warning.

(Appeal Br. 5.) Appellant further argues that “[s]ince claim 9 results in a
real alert to a driver and a real event data recording incident, both responsive
to sensor data and the latter responsive to issuing the former, this is plainly a
practical implementation of ‘collecting, analyzing and displaying
information.’” (Reply Br. 2.)
Under step one of the Alice framework, we “look at the ‘focus of the
claimed advance over the prior art’ to determine if the claim’s ‘character as a
whole’ is directed to excluded subject matter.” Affinity Labs of Texas, LLC
v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016).
The “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
. . . . 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.” Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1346 (Fed. Cir. 2015).

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Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). In
other words, the first step of the Alice framework “asks whether the focus of
the claims is on the specific asserted improvement in [the relevant
technology] or, instead, on a process that qualifies as an ‘abstract idea’ for
which computers are invoked merely as a tool.” Id. at 1335–36; see also
2019 Guidance at 54–55.
The Specification provides evidence as to what the claimed invention
is directed. In this case, the Specification discloses that the invention
“generally relate[s] to a method and apparatus for event data recording
(EDR) activation and logging.” (Spec. ¶ 1.) Claim 9 provides further
evidence. Claim 9 recites “a processor configured to: compare sensor data
. . . to predetermined sensor thresholds,” “if a threshold is exceeded, issue an
instruction,” “responsive to issuing the [instruction2], issue a request” for
data, and “receive data” in response to the request.
The generic processor recited in claim 9 (see Spec. ¶ 5)
analyzes/compares data, transmits data (issues an instruction and a request
for data), and receives data. Analyzing, transmitting, and receiving data
have been determined to be directed to an abstract idea. See, e.g.,
Berkheimer v. HP Inc., 881 F.3d 1360, 1366 (Fed. Cir. 2018) (determining
parsing, comparing, and storing data to be directed to an abstract idea),
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed.
Cir. 2016) (determining “that the ‘realm of abstract ideas’ includes
‘collecting information, including when limited to particular content’” as

2 Claim 9 recites “responsive to issuing the warning.” However, claim 9
does not recite issuing a warning. Rather, claim 9 recites “issue an
instruction for the vehicle to warn a driver.”
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well as analyzing and presenting information). In other words, claim 9
recites evaluating information and, based on the evaluation, issuing an
instruction and a request, and receiving a response. “[W]ith the exception of
generic computer-implemented steps, there is nothing in the claims
themselves that foreclose them from being performed by a human, mentally
or with pen and paper.” Intellectual Ventures I LLC v. Symantec Corp., 838
F.3d 1307, 1318 (Fed. Cir. 2016). Activities that can be performed in the
human mind or with pen and paper are characterized as the abstract idea of
mental processes. (See Guidance 2019 at 52.)
Moreover, the recited steps of claim 9 do not recite technological
implementation details for any of the steps. Claim 9 does not recite “a
particular way of programming or designing the software . . . , but instead
merely claim[s] the resulting system[].” Apple, Inc. v. Ameranth, Inc., 842
F.3d 1229, 1241 (Fed. Cir. 2016). For example, claim 9 does not recite how
the processor compares the sensor data, how the instruction to warn the
driver is issued, how the request for EDR is issued, or how the data is
received (other than the generic description of it being received
“wirelessly”). Claim 9 merely recites functional results to be achieved by
any means. Additionally, Appellant’s Specification makes clear that the
processor, and the wireless transmission and receipt of data, were well
known. (See, e.g., Spec. ¶ 4.) Claim 9 does not recite any specific asserted
improvement to the processor or other computer technology.
In cases involving software innovations, such as we have here, the
inquiry as to whether the claims are directed to an abstract idea “often turns
on whether the claims focus on ‘the specific asserted improvement in
computer capabilities ... or, instead, on a process that qualifies as an
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“abstract idea” for which computers are invoked merely as a tool.’” Finjan,
Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1303 (Fed. Cir. 2018) (quoting
Enfish, LLC, 822 F.3d at 1335–36). Here, the processor is invoked merely
as a tool.
Thus, under prong one of the two prong test in the 2019 Guidance,
claim 9 recites an abstract idea, i.e., mental processes; and, under prong two,
additional elements in claim 9 do not “apply, rely on, or use the judicial
exception in a manner that imposes a meaningful limit on the judicial
exception, such that the claim is more than a drafting effort designed to
monopolize the judicial exception.” (See 2019 Guidance at 54.) As such,
under step one of the Alice framework, claim 9 is directed to an abstract
idea, and we move to step two.
Step two of the Alice framework has been described “as a search for
an ‘ “inventive concept” ’ –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, 573 U.S.
at 217–18 (brackets in original) (quoting Mayo, 566 U.S. at 72–73). Under
step two, we examine, inter alia, whether a claim element or combination of
elements “[a]dds a specific limitation or combination of limitations that are
not well-understood, routine, conventional activity in the field, which is
indicative that an inventive concept may be present.” (2019 Guidance
at 56.)
As noted above, Appellant argues that “the Examiner fails to
demonstrate . . . that it is a routine practice to wirelessly receive vehicle
sensor data, warn drivers based on thresholds being exceeded, and request
and receive an EDR responsive to the warning.” (Appeal Br. 5.) We do not
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find this argument persuasive. “It has been clear since Alice that a claimed
invention’s use of the ineligible concept to which it is directed cannot supply
the inventive concept that renders the invention ‘significantly more’ than
that ineligible concept.” BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281,
1290 (Fed. Cir. 2018). The claimed invention is, at most, an improvement to
the performance of the abstract idea, in this case, information evaluation for
purposes of sending and receiving information. (See supra; see also 2019
Guidance at 52.)
The question is whether the steps of comparing/analyzing, sending,
and receiving data are well-understood, routine and conventional. These are
all routine and conventional functions for a computer processor and were
previously known to the industry. See Elec. Power Grp., 830 F.3d at 1356
(The claims “do not include any requirement for performing the claimed
functions of gathering, analyzing, and displaying in real time by use of
anything but entirely conventional, generic technology. The claims
therefore do not state an arguably inventive concept . . . .”), In re Katz
Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed.
Cir. 2011) (“Absent a possible narrower construction of the terms
‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved
by any general purpose computer without special programming.”) In sum,
taking the claim elements separately, the functions performed in claim 9 by
the generic processor are purely routine and conventional.
Considered as an ordered combination, the generic processor of
Appellant’s claimed invention adds nothing that is not already present when
the limitations are considered separately. For example, claim 9 does not, as
discussed above, purport to improve the functioning of the processor
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itself. Nor does it effect an improvement in any other technology or
technical field. Instead, claim 9 amounts to nothing significantly more than
an instruction to apply the abstract idea using a generic computer component
performing routine computer functions. That is not enough to transform an
abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 225–26.
Appellant’s other arguments, including those directed to now-
superseded USPTO guidance, have been considered but are not persuasive
of error. (See 2019 Guidance at 51 (“Eligibility-related guidance issued
prior to the Ninth Edition, R–08.2017 of the MPEP (published Jan. 2018)
should not be relied upon.”).)
Claims 10–14 are not argued separately from claim 9 and, therefore,
fall with claim 9. See 37 C.F.R. § 41.37(c)(1)(iv).

The § 103 rejection
Obviousness is a legal conclusion involving a determination of
underlying facts.
Under § 103, the scope and content of the prior art are to be
determined; differences between the prior art and the claims at
issue are to be ascertained; and the level of ordinary skill in the
pertinent art resolved. Against this background, the obviousness
or nonobviousness of the subject matter is determined. Such
secondary considerations as commercial success, long felt but
unsolved needs, failure of others, etc., might be utilized to give
light to the circumstances surrounding the origin of the subject
matter sought to be patented.

KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting Graham v.
John Deere Co. of Kansas City, 383 U.S. 1, 17–18 (1966)).
With regard to the scope and content of the prior art, Appellant argues
that
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the cited portions of Davidson are basically about “detecting
events” based on “thresholds.” There is no mention of the
thresholds being based on gathered vehicle data from even the
object vehicle, and certainly no mention of the thresholds being
based on data “gathered from vehicles in which event data
recording previously occurred.”

(Appeal Br. 10.) Specifically, Appellant argues that “Applicant claims the
atypical and novel process of comparing the data to thresholds derived from
other vehicles in which Event Data Recording already occurred.” (Id.)
The Examiner answers that “Davidson is used to disclose using
predetermined thresholds that are exceeded” (Answer 11 (citing Davidson
¶ 91)), that Basir is used to disclose “a driving classification system which
discloses using previously occurring data from events” (id. (citing Basir
¶ 59)), and that it is “the combination of Davidson in view of Basir [that] is
used to disclose said limitation” (id.). In other words, the Examiner relies on
the combination of Davidson and Basir to teach “compar[ing] sensor data,
wirelessly received from a vehicle, to predetermined sensor thresholds
determined based on data gathered from vehicles in which event data
recording (EDR) previously occurred.”
Davidson discloses a fleet management system. (Davidson ¶ 72.)
The system includes “a plurality of telematics devices 102 and portable data
acquisition devices 110, each being associated with one of a plurality of
delivery vehicles 100.” (Id. ¶ 73.) Davidson further discloses that
large-scale embodiments of the fleet management system may
include thousands of telematics devices 102 and portable data
acquisition devices 110 each capturing data from a unique
delivery vehicle 100 or driver and transmitting the captured data
to multiple servers 120. . . . [T]he portable data acquisition
device 110 represents one embodiment of a service device that
may be adapted for providing service data for a fleet of vehicles.
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(Id.) Specifically, Davidson discloses that a
telematics device 102 may be configured to capture and store
telematics data from the vehicle sensors 410 at predefined time
intervals and in response to detecting the occurrence of one or
more of a plurality of predefined vehicle events. Generally, a
vehicle event may be defined as a condition relating to any
parameter or combination of parameters measurable by the one
or more vehicle sensors 410 (e.g., the engine idling, vehicle
speed exceeding a certain threshold, etc.).

(Id. ¶ 91; see also Answer 11.)
Basir discloses a “vehicle monitoring system [that] provides a
plurality of sensors in the vehicle recording performance of the vehicle.”
(Basir, Abstract.) Basir further discloses that an “in vehicle appliance 12
gathers data from the various sensors mounted within the vehicle 10 and
stores that data. The in vehicle appliance 12 transmits this data (or
summaries or analyses thereof) as a transmission signal through a wireless
network to a server 30.” (Id. ¶ 15.) Specifically, Basir discloses that
[i]n applications where the extreme events are of interest, the
classification parameters are automatically adapted based on
historical driving characteristics of each vehicle combined with
trends across vehicles in the same peer-group (based on
proximity, vehicle type, driving patterns, emissions, and other
parameters). The automatic adaptation of parameters allows the
extreme x % of vehicles and/or the extreme y % of events to be
quickly identified even as driving conditions change. . . . As the
extreme events of interest are refined for each peer-group, the
specific parameters around these extreme events can be pushed
to each vehicle to ensure only the events of interest are
transmitted.

(Basir ¶ 59; see also Answer 11.)
Appellant argues that “Basir’s adaptation of parameter data to historic
driving trends is not an adaptation of parameter data based on vehicles in
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which event data recording previously occurred.” (Reply Br. 2.) We do not
find this argument persuasive. Basir does not simply teach adapting
parameter data based on general historic driving trends. Basir teaches
adapting parameters using the “historic driving characteristics of each
vehicle combined with trends across vehicles in the same peer-group (based
on . . . driving patterns, emissions, and other parameters).” (Basir ¶ 59.)
More particularly, Basir teaches adapting parameters (e.g., thresholds) based
on parameters received from “each vehicle combined with trends across
vehicles in the same peer-group,” and pushing these parameters to each
vehicle to set a threshold as to what events are transmitted. (See id.)
Appellant does not persuasively argue why such data are not “data gathered
from vehicles in which event data recording previously occurred,” as recited
in claim 9.
Moreover, “one cannot show non-obviousness by attacking references
individually where, as here, the rejections are based on combinations of
references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). A reference
“must be read, not in isolation, but for what it fairly teaches in combination
with the prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986). Obviousness is more than what is specifically disclosed in
the cited references. “If a person of ordinary skill can implement a
predictable variation, § 103 likely bars its patentability.” KSR Int’l Co., 550
U.S. at 417.
As discussed above, the Examiner relies on the combination of
Davidson and Basir to teach “compar[ing] sensor data, wirelessly received
from a vehicle, to predetermined sensor thresholds determined based on data
gathered from vehicles in which event data recording (EDR) previously
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occurred.” (See Answer 11; see also Final Action 7.) Specifically, the
Examiner determines that it would have been obvious “to modify Davidson
to use the gathered data for adaptable parameters as taught by Basir for
increasing relevant data for adapting parameters to be based on current
vehicle fleet data for aligning fleet management with current driving needs.”
(Final Action 7.)
In view of the above, we are not persuaded the Examiner erred in
rejecting claim 9 under § 103. Claims 10–14 are not separately argued and
fall with claim 9. See 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
The Examiner’s rejection of claims 9–14 under 35 U.S.C. § 101 is
affirmed.
The Examiner’s rejection of claims 9–14 under 35 U.S.C. § 103 is
affirmed.
Specifically:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
9–14 101 eligibility 9–14
9–14 103 Davidson, Basir,
Gompert
9–14
Overall Outcome 9–14

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.
§ 1.136(a)(1)(iv).

AFFIRMED