Franz Liebel

Patent Trials and Appeals Board

Dec 15, 2020

2019006936 (P.T.A.B. Dec. 15, 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.
14/745,407 06/20/2015 Franz Peter Liebel 6266
132842 7590 12/15/2020
Franz-Peter Liebel, Ph.D.
Gartenstrasse 80
Grossbettlingen Baden-Worttemberg, D-72663
GERMANY
EXAMINER
ZARROLI, MICHAEL C
ART UNIT PAPER NUMBER
3649
MAIL DATE DELIVERY MODE
12/15/2020 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 FRANZ PETER LIEBEL
Appeal 2019-006936
Application 14/745,407
Technology Center 3600
Before CHARLES N. GREENHUT, MICHAEL J. FITZPATRICK, and
JEREMY M. PLENZLER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 5, 7, 8, and 11. 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(a). Appellant identifies the real party in interest as the
inventor, Franz Peter Liebel. Appeal Br. 1.
Appeal 2019-006936
Application 14/745,407

2
CLAIMED SUBJECT MATTER
The claims are directed to “[a] computer-implemented universal
method” with “the invention characterized by an algebraic method.” Claim
1, reproduced below, is illustrative of the claimed subject matter:
1. A computer-implemented universal method that can be used in numerous
areas of knowledge, for example, earthquake research, geological
prospecting, criminal forensics, aircraft accident investigation, on-board
diagnostics in road cars and aircraft, monitoring of sea-based electricity
generators, and in medicine, in the latter case amongst other things for the
evaluation of electrocardiograms; the method is applicable in all tasks where
several hypotheses stand for selection and the most likely candidate will be
determined by the symptoms (observed or missing although expected), the
surrounding hypotheses, and - according to need - the inhibitors; the
invention is characterized by an algebraic method which works on four
competing diagnoses Kᵢˊ, i:= 1, …, 4 and calculates for each one of them the
appreciation factor AF(i) and the a-posteriori probability xᵢ, with the highest
upgrading factor determining the correct diagnosis; every Kᵢˊ is affiliated
with a set of follow events {Fij , j := 1, …, 6} with the properties that each
event from {Fij} is the follow event of at least two diagnoses, that the
elements in the set {Kᵢˊ, i:+= 1, …, 4} are stochastically independent and
stochastically self-reliant and that {Kᵢˊ, i:+= 1, …, 4} contains either all
causes of the Fij or is supplemented by additional Ki in negated form; all
together enables the formation of the following equations:

x1 := p(K1| F11 … F16 K2ˊ K3ˊ K4ˊ),
x2 := p(K2| F21 … F26 K1ˊ K3ˊ K4ˊ),
x3 := p(K3| F31 … F36 K2ˊ K1ˊ K4ˊ),
x4 := p(K4| F41 … F46 K2ˊ K3ˊ K1ˊ),

which get a transformaiton into 𝑥𝑥ᵢ ∶= 1
1+ 𝑍𝑍ᵢ𝑁𝑁ᵢ·
𝑝𝑝(𝐾𝐾�ᵢ)
𝑝𝑝(𝐾𝐾ᵢ)
, i:= 1, …, 4, with

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Z1 := p(F11…F16 | 𝐾𝐾�1 K2ˊ K3ˊ K4ˊ) and N1 := p(F11…F16| K1 K2ˊ K3ˊ K4ˊ),
Z2 := p(F21…F26 | 𝐾𝐾�2 K1ˊ K3ˊ K4ˊ) and N2 := p(F21…F26| K2 K1ˊ K3ˊ K4ˊ),
Z3 := p(F31…F36 | 𝐾𝐾�3 K2ˊ K1ˊ K4ˊ) and N3 := p(F31…F36| K3 K2ˊ K1ˊ K4ˊ),
Z4 := p(F41…F46 | 𝐾𝐾�4 K2ˊ K3ˊ K1ˊ) and N4 := p(F41…F46| K4 K2ˊ K3ˊ K1ˊ),
whereby the Zi and the Ni are subjected to a linear interpolation; so that for
e.g. Z1 goes on in

p(F11…F16 |𝐾𝐾�1 K2ˊ K3ˊ K4ˊ)=
p(F11…F16 |𝐾𝐾�1 K2ˊ K3ˊ K4ˊ)=·x2·x3·x4+p(F11…F16|𝐾𝐾�1 K2ˊ K3ˊ 𝐾𝐾�4ˊ)·x2·x3·�̅�𝑥+
p(F11…F16 |𝐾𝐾�1 K2ˊ K3ˊ K4ˊ)=·x2·�̅�𝑥3·x4+p(F11…F16|𝐾𝐾�1 K2ˊ 𝐾𝐾�3ˊ 𝐾𝐾�4ˊ)·x2·�̅�𝑥3·�̅�𝑥4+
p(F11…F16 |𝐾𝐾�1 K2ˊ K3ˊ K4ˊ)=·�̅�𝑥2·x3·x4+p(F11…F16|𝐾𝐾�1 K2ˊ K3ˊ K4ˊ)·�̅�𝑥2·x3·�̅�𝑥4+
p(F11…F16 |𝐾𝐾�1 K2ˊ K3ˊ K4ˊ)=·�̅�𝑥2·�̅�𝑥3·x4+p(F11…F16|𝐾𝐾�1 K2ˊ K3ˊ K4ˊ)·�̅�𝑥2·�̅�𝑥3·�̅�𝑥4,

no claim is made to the exclusive right to use the stated linear interpolation;
and wherein for the conditional probabilities present in such interpolations,
the designations aik and bik are chosen, k:=0, …, 7, in detail aik for the
interpolations of Zi and bik for the interpolation of Ni, in a manner that, for
example, the first factor in the equation above will be replaced by a10 with

a10:=p(F11… F16 |𝐾𝐾�1K2K3K4);

using ci:=p(Ki), a system of equations in the four unknowns xi
x1 =

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x3 =

results, wherein for all Ki' equiprobability with p(Ki) := 0.25 is first
assumed; in order to get the aik and bik - by using the conditional stochastic
independence of the F-elements – a factorization with respect to the F-
elements is carried out, for example as

a10:=p(F11|𝐾𝐾�1K2K3K4) ·… ·p(F16 |𝐾𝐾�1K2K3K4);

no claim is made to the exclusive right to use the conditional stochastic
independence of the F-elements and the stated factorization with respect to
the F-elements; a further factorization of the emerging conditional
probabilities is performed — taking into account the stochastic self-reliance
of the Ki — for example

p(F11|𝐾𝐾�1K2K3K4) = [1-p(𝐹𝐹�11|K2~) · p(𝐹𝐹�11|K3~)·p(𝐹𝐹�11|K4~)],

no claim is made to the exclusive right to use the self-reliance of the K-
elements and the stated factorization with respect to the K-elements; wherein
the tilde symbol denotes a product of events (synonymous: compound of
events, logic product) which apart from the Ki entered before the tilde
contains all competing diagnoses in negated form, and wherein the statement
p(𝐹𝐹�ij|Ki~) = 0 is true, if Fij is no follow event of Ki ; in order to carry out the
calculation we introduce factors fij with fij : = 1, if Fij is present as a
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symptom, and fij :=0, if Fij is not present as a symptom, so that in the
example chosen we get for a10 the form

a10:=
[f11·p(F11 |𝐾𝐾�1K2K3K4)+ (1- p(F11 |𝐾𝐾�1K2K3K4)] ·
M
·[f16·p(F16 |𝐾𝐾�1K2K3K4)+ (1-f16) · (1- p(F16 |𝐾𝐾�1K2K3K4)];

with this method a system of four nonlinear equations with the four
unknowns xi is obtained, which will be solved by a commercial calculation
program providing the numerical values of the xi and consequently the
numerical values of the AF(i) := xᵢ
𝑝𝑝(𝐾𝐾ᵢ)
; no claim is made to the exclusive
right to use the way to the creation of the equations system or the equations
system itself, with the exception that an equations system, having the stated
characteristics, is used or enables the use to calculate the probabilities of
diagnoses.

REJECTION
Claims 1–3, 5, 7, 8, and 11 are rejected under 35 U.S.C. § 101 as
being patent-ineligible.
Claims 1–3, 5, 7, 8, and 11 are rejected under 35 U.S.C. § 112(b) as
being indefinite.
OPINION
Patent Eligibility
The Examiner determines that the claims are patent-ineligible under
the judicial exception to 35 U.S.C. § 101. Final Act. 2–7. Appellant’s
contentions focus on claim 1. Appeal Br. 4 (noting that “[t]he dependent
claims stand or fall with the independent Claim 1”).
Section 101 of the Patent Act provides that “any new and useful
process, machine, manufacture, or composition of matter, or any new and
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useful improvement thereof” is patent eligible. 35 U.S.C. § 101. Claim 1
falls within the literal scope of this provision because it recites a process.
The Supreme Court, however, has long recognized an implicit
exception to this section: “Laws of nature, natural phenomena, and abstract
ideas are not patentable.” Alice Corp. v. CLS Bank lnt’l, 573 U.S. 208, 216
(2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc.,
569 U.S. 576, 589 (2013)). To determine whether a claim falls within one of
these excluded categories, the Court has set out a two-part framework. The
framework requires us first to consider whether the claim is “directed to one
of those patent-ineligible concepts.” Alice, 573 U.S. at 217. If so, we then
examine “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.” Alice, 573 U.S. at
217 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S.
66, 78, 79 (2012)). That is, we examine the claims for an “inventive
concept,” “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 (alteration
in original) (quoting Mayo, 566 U.S. at 72–73).
Under the 2019 Eligibility Guidance, to decide whether a claim is
“directed to” an abstract idea, we evaluate whether the claim (1) recites an
abstract idea grouping listed in the guidance and (2) fails to integrate the
recited abstract idea into a practical application. See 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50, 51 (Jan. 7, 2019)
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(“2019 Eligibility Guidance”).2 The groupings of abstract ideas listed in the
guidance include: “Mathematical concepts—mathematical relationships,
mathematical formulas or equations, mathematical calculations).” 2019
Eligibility Guidance, 84 Fed. Reg. at 52. If the claim is “directed to” an
abstract idea, as noted above, we then determine whether the claim recites an
inventive concept. The guidance explains that, when making this
determination, we should consider whether the additional claim elements
add “a specific limitation or combination of limitations that are not well-
understood, routine, conventional activity in the field” or “simply append[]
well-understood, routine, conventional activities previously known to the
industry.” 2019 Eligibility Guidance, 84 Fed. Reg. at 56.
Step 2(A), Prong 1
The Examiner explains that “the claims can be grouped under the
abstract idea category of mathematical concepts which include mathematical
relationships, mathematical formulas or equations and, mathematical
calculations.” Final Act. 2. Appellant does not dispute that the claims recite
mathematical concepts. See Appeal Br. 5–8.
Appellant contends that “patent protection is not claimed for the
mathematical theorems and such an entitlement is excluded by three
disclaimers (Disclaimer No. l, 2 and 3 in Claim 1).” Id. at 6. The purported
disclaimers in claim 1 referenced by Appellant are that: 1) “No claim is
made to the exclusive right to use the stated linear interpolation;” 2) “No
claim is made to the exclusive right to use the conditional stochastic

2 An update to the 2019 Revised Patent Subject Matter Eligibility Guidance
issued in October 2019 (“October 2019 Update,” available at https://
www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.pdf).
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independence of the F-elements and the stated factorization with respect to
the F-elements;” 3) “No claim is made to the exclusive right to use the self-
reliance of the K-elements and the stated factorization with respect to the K-
elements;” and 4) “No claim is made to the exclusive right to use the way to
the creation of the equations system or the equations system itself, with the
exception that an equations system, having the stated characteristics, is used
or enables the use to calculate the probabilities of diagnoses.” Nevertheless,
the claim recites those equations. Moreover, those equations amount to
essentially the entire claim.
As acknowledged by Appellant, claim 1 recites an abstract idea,
namely mathematical concepts including mathematical formulas. As the
Examiner explains, every step in the claim recites mathematical concepts.
See Final Act. 5–7.
Step 2(A), Prong 2
The Examiner determines that “there are no other elements in the
claims in addition to the abstract idea.” Final Act. 6. Indeed, the remaining
limitations (those not included in the recited abstract idea noted above) are
simply a statement in the preamble that the method is “computer-
implemented” with a series of intend uses for the recited equations, namely
that the equations
can be used in numerous areas of knowledge, for example,
earthquake research, geological prospecting, criminal forensics,
aircraft accident investigation, on-board diagnostics in road cars
and aircraft, monitoring of sea-based electricity generators, and
in medicine, in the latter case amongst other things for the
evaluation of electrocardiograms; the method is applicable in all
tasks where several hypotheses stand for selection and the most
likely candidate will be determined by the symptoms (observed
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or missing although expected), the surrounding hypotheses, and
- according to need - the inhibitors.
After “disclaiming” all of the equations, as noted above, the claim concludes
by reciting that “an equations system, having the stated characteristics, is
used or enables the use to calculate the probabilities of diagnoses.”
Appellant contends that “[a]s a matter of fact, the invention is a
diagnostic tool. And no doubt, diagnostic tools are practical applications.”
Appeal Br. 5. Appellant contends, without specificity, that “these [recited]
steps purposefully build a diagnostic machine and make it possible at the
end to identify the most likely diagnosis out of a number of possible
diagnoses.” Id.
To be clear, the only “machine” recited in the claim appears in a
general recitation that the method is “computer-implemented,” which cannot
integrate the abstract idea into a practical application because it simply uses
a generic computer as a tool to perform the abstract idea and does not reflect
an improvement in the functioning of the computer itself. See 2019
Eligibility Guidance, 84 Fed. Reg. at 55. The intended uses recited in the
preamble of claim 1 also do not integrate the recited mathematical concepts
into a practical application. See id. (“[A] judicial exception has not been
integrated into a practical application” when “an additional element does no
more than generally link the use of a judicial exception to a particular
technological environment or field of use.”).
Accordingly, claim 1 is directed to an abstract idea.
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Step 2(B)
Because we agree with the Examiner that claim 1 is directed to an
abstract idea, we next determine whether the claim provides an inventive
concept. See 2019 Eligibility Guidance, 84 Fed. Reg. at 56.
The claimed use of a “computer-implemented” method to carry out
the abstract idea “simply appends well-understood, routine, conventional
activities previously known to the industry” (see 2019 Eligibility Guidance,
84 Fed. Reg. at 56). As the Examiner finds, “[t]he specification barely
mentions a computer and when it does, it is inconsequential and cursory.”
Final Act. 6. Indeed, Appellant acknowledges that “computers and their
function are not the purpose of the invention.” Appeal Br. 8.
Accordingly, claim 1 does not provide any inventive concept.
Conclusion
For the reasons set forth above, after applying the 2019 Eligibility
Guidance, we sustain the Examiner’s decision to reject claims 1–3, 5, 7, 8,
and 11 under 35 U.S.C. § 101.
Indefiniteness
The Examiner rejects claims 1–3, 5, 7, 8, and 11 as indefinite because
they recite the purported disclaimers noted above. See Final Act. 7 (“In
claim 1, the applicant has added contingent phraseology that is indefinite. It
seems as if the applicant is trying to use negative limitations to limit his
claimed invention.”).
Citing MPEP § 2173.05(i), Appellant responds that the “disclaimers”
are negative limitations properly included in the claim. Appeal Br. 9. Those
“disclaimers” are not valid “negative limitations” as asserted by Appellant
because they do not further define any particular structure or step of the
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claim. Rather, the “disclaimers” are “an attempt by appellants to claim their
invention by excluding what they did not invent rather than by particularly
and distinctly pointing out what they did invent” as required by 35 U.S.C.
§ 112(b). In re Schechter, 205 F.2d 185, 187 (CCPA 1953); see also MPEP
§ 2173.05(i).
Appellant further notes that “[t]he disclaimers were inserted according
to 35 USC 253(a).” Id. at 10. Appellant’s reliance on “disclaimer” as set
forth in 35 U.S.C. § 253(a) is misplaced. Section 253(a) refers to the
“disclaimer of any complete claim” by “a patentee” as opposed to an
applicant. 35 U.S.C. § 253(a) (emphasis added); see also MPEP § 1490(I)
(in Chapter 1400 entitled “Correction of Patents”) (“Under 35 U.S.C. 253(a)
. . . the owner of a patent may disclaim a complete claim or claims of the
patent. This may result from a lawsuit or because the patent owner has
reason to believe that the claim or claims are too broad or otherwise
invalid.”) (emphasis added).
Rather than assign no meaning to the recited “disclaimers,” we affirm
the Examiner’s decision to reject claims 1–3, 5, 7, 8, and 11 as indefinite.
See In re Packard, 751 F.3d 1307, 1310 (Fed. Cir. 2014) (per curiam) (A
claim is properly rejected as indefinite if, after applying the broadest
reasonable interpretation in light of the specification, the metes and bounds
of a claim are not clear because the claim contains words or phrases whose
meaning is unclear.); see also Ex parte McAward, Appeal No. 2015-006416,
2017 WL 3669566, at *5 (PTAB Aug. 25, 2017) (precedential) (adopting the
approach for assessing indefiniteness approved by the Federal Circuit in
Packard). Appellant has the opportunity to resolve ambiguities during
prosecution. See, e.g., McAward, at *6–7.
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CONCLUSION
The Examiner’s rejections are affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3, 5, 7, 8, 11 101 Patent Eligibility 1–3, 5, 7, 8, 11
1–3, 5, 7, 8, 11 112(b) Indefiniteness 1–3, 5, 7, 8, 11
Overall
Outcome
1–3, 5, 7, 8, 11

TIME PERIOD FOR RESPONSE
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