Gordon Poole

Patent Trials and Appeals Board

Mar 2, 2020

15275818 - (D) (P.T.A.B. Mar. 2, 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.
15/275,818 09/26/2016 Gordon POOLE 0336-308-6-CON/100527 1031
11171 7590 03/02/2020
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
EXAMINER
LAU, TUNG S
ART UNIT PAPER NUMBER
2863
NOTIFICATION DATE DELIVERY MODE
03/02/2020 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):
Mailroom@ppblaw.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GORDON POOLE

Appeal 2019-001537
Application 15/275,818
Technology Center 2800
____________

Before ROMULO H. DELMENDO, MICHAEL P. COLAIANNI, and
GEORGE C. BEST, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant1 appeals under 35 U.S.C. § 134(a) from the Primary
Examiner’s final decision to reject claims 1–17 and 19–21.2 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—namely, “CGG SERVICES SA” (Application Data Sheet
filed September 26, 2016 at 6), which is also identified as the real party in
interest (Appeal Brief filed September 17, 2018 (“Appeal Br.”) at 2).
2 See Appeal Br. 6–15; Reply Brief filed December 12, 2018 (“Reply Br.”)
at 1–9; Final Office Action entered March 22, 2018 (“Final Act.”) at 2–20;
Examiner’s Answer entered October 26, 2018 (“Ans.”) at 3–27.
Appeal 2019-001537
Application 15/275,818

2
I. BACKGROUND
The current application is a continuation of Application 14/678,099,
filed April 3, 2015 (“’099 Application”), which issued as United States
Patent 9,535,181 B2 (“’181 Patent” or “Poole ’181”) on January 3, 2017
(Specification filed September 26, 2016 (“Spec.”) ¶ 1). The claims in the
’181 Patent form the basis for the Examiner’s obviousness-type double
patenting rejection discussed below.
The subject matter on appeal relates to methods, computing devices,
and computer instructions for processing seismic data (id. Abstract).
Representative claim 1 is reproduced from the Claims Appendix to the
Appeal Brief, as follows:
1. A method for processing input seismic data d
collected over a surveyed subsurface, the method comprising:
receiving the input seismic data d recorded, in a first
domain, by seismic receivers deployed on streamers that travel
in water, wherein the input seismic data d corresponds to seismic
waves that are produced by a source, pass through the surveyed
subsurface and are detected by the seismic receivers upon exiting
from the surveyed subsurface, and the input seismic data d
includes up-going and down-going waves;
generating a model p, in a second domain, by using a
transform L, to describe the input seismic data d;
processing with a processor the model p, by applying a
transform L′, which is different from the transform L, to
calculate an output particle motion dataset at locations between
the streamers; and
generating an image of the surveyed subsurface based on
the output particle motion dataset,
wherein each of the transform L and transform L′ is a
matrix that includes exponential functions having exponents
that depend on (i) time shifts associated with the up-going or
down-going waves and (ii) a frequency of the seismic data d,
wherein the first domain is different from the second
domain, and
Appeal 2019-001537
Application 15/275,818

3
wherein the output particle motion dataset is indicative
of a particle motion due to seismic waves generated by a seismic
source.
(Appeal Br. 16 (emphases added)).
II. REJECTIONS ON APPEAL
The claims on appeal stand rejected, as follows
A. Claims 1–17 and 19–21 under the judicially-created doctrine of
obviousness-type double patenting as unpatentable over claims
1–25 in the ’181 Patent;3 and
B. Claims 1–17 and 19–21 under 35 U.S.C. § 101 as directed to
non-statutory subject matter.
(Ans. 3–27; Final Act. 2–20).
III. DISCUSSION
Rejection A (Obviousness-Type Double Patenting). The Appellant
relies on the same arguments for all claims subject to this rejection, focusing
only on common limitations recited in independent claims 1 and 20 (Appeal
Br. 6–7). Therefore, we limit our discussion to claim 1, which we select as
representative pursuant to 37 C.F.R. § 41.37(c)(1)(iv). All other claims
stand or fall with claim 1.
The Examiner finds that the claims on appeal are not patentably
distinct from the claims in the ’181 Patent because the latter claims
encompass the subject matter recited in the claims on appeal as “a slightly

3 Although both the Examiner and the Appellant state that this rejection is
provisional (Ans. 3; Final Act. 2; Appeal Br. 6), the rejection is not
provisional because the ’099 Application issued as the ’181 Patent.
Appeal 2019-001537
Application 15/275,818

4
broader version” (Ans. 5–12; see also Final Act. 2–8). The Appellant, on the
other hand, contends that claim 1 on appeal is patentably distinct from the
claims in the ’181 Patent because the Appellant’s claimed subject matter
reciting the limitations highlighted in reproduced claim 1 above would not
have been obvious over the ’181 Patent’s claims (Appeal Br. 6).
“‘The doctrine of double patenting is intended to prevent a[n]
[applicant] from obtaining a time-wise extension of [a] patent for the same
invention or an obvious modification thereof.’” In re Basell Poliolefine
Italia S.P.A., 547 F.3d 1371, 1375 (Fed. Cir. 2008) (internal citation
omitted). “The judicially created doctrine of obviousness-type double
patenting ‘prohibit[s] a party from obtaining an extension of the right to
exclude through claims in a later patent that are not patentably distinct from
claims in a commonly owned earlier patent.’” Id. (internal citation omitted).
“In determining double patenting, a one-way test is normally applied, in
which ‘the examiner asks whether the application claims are obvious over
the patent claims.’” Id. (internal citation omitted).4 “‘[Our reviewing] court
has endorsed an obviousness determination similar to, but not necessarily the
same as, that undertaken under 35 U.S.C. § 103 in determining the propriety
of a rejection for double patenting.’” Id. at 1379 (internal citation omitted).
Applying this judicially-created doctrine, we discern no reversible
error in the Examiner’s rejection based on the Appellant’s arguments for the

4 “In unusual circumstances, where an applicant has been unable to issue its
first-filed application, a two-way test may apply, in which ‘the examiner also
asks whether the patent claims are obvious over the application claims.’” Id.
(internal citation omitted). In this case, the first-filed application has issued
as the ’181 Patent, so the two-way test does not apply.
Appeal 2019-001537
Application 15/275,818

5
reasons given below, where we address each argued limitation recited in
claim 1 on appeal. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
1. “by using a transform L”
As shown in the Examiner’s claim chart (Ans. 5–11), both claim 1 on
appeal and ’181 Patent claim 1 recite “generating a model p[,] in a second
domain” (Appeal Br. 16; ’181 Patent, claim 1, col. 38, l. 20). Although ’181
Patent claim 1 does not recite “by using a transform L,” as recited in claim 1
on appeal, the language “generating a model p in a second domain” in ’181
Patent claim 1 must be interpreted in light of the ’181 Patent Specification,
which appears to have the same disclosure as the current Specification as it
is the parent from which the current application claims continuation status.
In re Vogel, 422 F.2d 438, 441 (CCPA 1970) (“[T]he patent disclosure [of
the conflicting patent] may not be used as prior art. . . [but] in certain
instances it may be used as a dictionary to learn the meaning of terms in a
claim.”).
The ’181 Patent Specification informs one skilled in the relevant art
that “generating a model p in a second domain” covers “solving an inverse
problem based on an L transform” as a preferred embodiment (’181 Patent,
col. 4, ll. 6–19; col. 35, ll. 37–53 (Embodiment G)). Therefore, a method
that uses an “L transform” in generating a model p in a second domain was
already covered by ’181 Patent claim 1. Basell, 547 F.3d at 1377–78
(“[C]laim 1 of the [earlier-issued] patent recites ‘another olefinic monomer,’
and thus covers a genus that includes ethylene [recited in the claim on
appeal].”); In re Schneller, 397 F.2d 350, 356 (CCPA 1968) (“[P]rotection
[appellant] already had would be extended, albeit i[n] somewhat different
Appeal 2019-001537
Application 15/275,818

6
form, for several years beyond the expiration of his patent, were we to
reverse.”).
2. “by applying a transform L′, which is different from the
transform L, to calculate an output particle motion
dataset at locations between the streamers”
As the Examiner correctly points out (Ans. 11), ’181 Patent claim 8,
which depends from claim 1, recites a “step of processing the model p
compris[ing] . . . applying an L′ transform to the model p to obtain the
output seismic data set” (’181 Patent col. 38, ll. 44–47). In addition, ’181
Patent claim 5 recites that “the output seismic dataset is indicative of
pressure measurements and/or particle motion measurements” (id. at col. 38,
ll. 34–36). Therefore, applying a transform L′ to calculate an output particle
motion dataset was already covered by ’181 Patent claim 1 as a preferred
embodiment (id. at col. 35, l. 37–col. 36, l. 40 (Embodiment G)).
3. “each of the transform L and transform L′ is a matrix that
includes exponential functions having exponents that
depend on (i) time shifts associated with the up-going or
down-going waves and (ii) a frequency of the seismic
data”
This limitation was added by an Amendment filed February 23, 2018.
In that Amendment (p. 8), the Appellant indicated that the limitation was
supported by Equations (5), (6 – a), and (6 – b) (Spec. ¶¶ 44, 46). The same
or substantially identical equations are used in the ’181 Patent to describe
transform L and transform L′ (’181 Patent col. 6, ll. 18–39; col. 8, ll. 1–26).
Therefore, when “transform L” and “transform L′” are read in light of the
’181 Patent Specification, Patent ’181 claim 1 already covered the subject
matter defined by these limitations.

Appeal 2019-001537
Application 15/275,818

7
4. “the output particle motion dataset is indicative of a
particle motion due to seismic waves generated by a
seismic source”
As we discussed above in item 2, ’181 Patent claim 5 recites that “the
output seismic dataset is indicative of pressure measurements and/or particle
motion measurements” (id. at col. 38, ll. 34–36). Therefore, calculating an
output particle motion dataset was already covered by ’181 Patent claim 1 as
a preferred embodiment (id. at col. 35, l. 37–col. 36, l. 40 (Embodiment G)).
For the foregoing reasons, we find that the claims on appeal, if
allowed without appropriate amendments and/or a terminal disclaimer,
would result in an unjustified time-wise extension in the coverage for subject
matter that was already conferred in the ’181 Patent claims. Therefore, we
uphold the obviousness-type double patenting rejection maintained against
claim 1 and all other claims falling therewith.
Rejection B (Patent Eligibility). The Appellant relies on the same
arguments for all claims subject to this rejection, focusing only on
independent claims 1, 19, and 20 collectively (Appeal Br. 7–15). Therefore,
we limit our discussion to claim 1, which we select as representative
pursuant to 37 C.F.R. § 41.37(c)(1)(iv). All other claims stand or fall with
claim 1.
1. The Examiner’s Position
The Examiner states that the limitations recited in claim 1’s body “are
found to be abstract (not exactly the same but similar to Electric Power
Group, LLC v. Alstom S.A.[, 830 F.3d 1350,] 119 USPQ2d 1739 (Fed. Cir.
2016)), See also PTAB case 12694375, 13341973)” (Ans. 10; Final Act. 9–
10). The Examiner further states:
Appeal 2019-001537
Application 15/275,818

8
The additional limitations of, “processing input seismic
data d collected over a surveyed subsurface” is found to be an
insignificant post solution activity.
Therefore, taken alone, the additional elements do not
amount to significantly more than the abstract idea. Looking at
the limitations as an ordered combination adds nothing
significantly more than the abstract idea itself that is not already
present when looking at the elements taken individually.
Therefore, the claim as a whole does not add significantly more
to the abstract idea to transform it into an eligible invention.
Furthermore, there is no indication that the combination of
elements improves the functioning of a computer or improves
any other technology. Therefore claim 1 is rejected as being
directed to a non-eligible subject matter under 35 U.S.C. [§] 101.
(Ans. 14; Final Act. 10–11).
2. The Appellant’s Position
The Appellant contends that claim 1 is not directed to abstract ideas
because “[u]nlike EPG [Electric Power Grid]’s input data streams, the
seismic data is not made of repeated measurements ‘collected in real time at
geographically distinct points over the wide area of the interconnected
electric power grid[]’” (Appeal Br. 10). The Appellant argues:
Seismic data only when processed as an assembly may yield an
image of the surveyed subsurface. Further, seismic data
processing does not yield abstract quantities such as the dynamic
stability metrics or composite indicator of reliability in EPG,
instead yielding “an output particle motion dataset at locations
between the streamers” “indicative of a particle motion due to
seismic waves generated by a seismic source.” Further yet, an
image of the surveyed subsurface through which the seismic
waves pass before being detected by receivers is generated based
on the output particle motion dataset. Both the output particle
motion dataset and the image represent physical reality not
abstract indicators as in EPG.
Therefore, Appellant[] believe[s] that the court in EPG
would not have found the claimed inventions abstract ideas.
Appeal 2019-001537
Application 15/275,818

9
The [Examiner] errs by failing to articulate what the
claims (seen each as a whole) are directed to, which failure
vitiates the patent eligibility analysis. If the claims were seen as
a whole, a person of ordinary skill in the art (POSITA) would
have found them evidently directed to patentable subject matter.
(Id. at 9–10). According to the Appellant, “[t]he claims involve data
processing . . . but do not recite a patent-ineligible concept, being instead
directed to seismic exploration that starts from seismic data . . . and yields an
image of the survey[ed] subsurface” (id. at 12). Furthermore, the Appellant
argues that the claims recite significantly more than data processing steps
(id. at 13–14). In the Reply Brief, the Appellant objects to the Examiner’s
reliance on the two Board decisions (Ans. 13) as either outdated or directed
to claims that differ from the current claims (Reply Br. 2–3). The Appellant
cites, instead, Ex parte Grion, https://e-
foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2018000595-10-
23-2018-1 (id. at 3).
3. Opinion
The Appellant’s arguments fail to identify reversible error in the
Examiner’s rejection. Jung, 637 F.3d at 1365.
As a preliminary matter, we observe that the Examiner’s Answer,
Final Action, and the Appellant’s briefs were filed prior to the USPTO’s
2019 Revised Patent Subject Matter Eligibility Guidance (“Revised
Guidance”), 84 Fed. Reg. 50 (Jan. 7, 2019), as updated in October 2019.
Therefore, the Board decisions cited by both the Examiner and the Appellant
have little or no value in our analysis, which must be undertaken under the
Revised Guidance.

Appeal 2019-001537
Application 15/275,818

10
A. Claim Construction
We start with claim construction. MyMail, Ltd. v. ooVoo, LLC, 934
F.3d 1373, 1379 (Fed. Cir. 2019) (“Determining patent eligibility requires a
full understanding of the basic character of the claimed subject matter.”).
Claim 1 recites, after gathering data in a “receiving” step, the
additional steps of: “generating a model p, in a second domain, by using a
transform L, to describe the input seismic data d”; and “processing with a
processor the model p, by applying a transform L′, which is different from
the transform L, to calculate an output particle motion dataset at locations
between the streamers” (Appeal Br. 16). As further recited in the claim,
“each of the transform L and transform L′ is a matrix that includes
exponential functions having exponents that depend on (i) time shifts
associated with the up-going or down-going waves and (ii) a frequency of
the seismic data d” (id.). In identifying written description support for the
“exponential functions” limitations, the Appellant previously referred to
Equations (5), (6 –a), and (6 – b) disclosed in paragraphs 44 and 46 in the
Specification (Amendment filed February 23, 2018 at 8). Thus, reading the
claim in light of the Specification, we construe “generating a model p . . .
using a transform L” and “processing with a processor the model p . . . by
applying a transform L′” as performing mathematical operations involving
Equations (5) and Equations (6 –a) and (6 – b), respectively.
B. Principles of Law
Having construed certain key limitations recited in claim 1, we turn to
patent eligibility. An invention is patent-eligible if it claims a “new and
useful process, machine, manufacture, or composition of matter.” 35 U.S.C.
§ 101. The Supreme Court, however, has long interpreted 35 U.S.C. § 101
Appeal 2019-001537
Application 15/275,818

11
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
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)
and Alice. Alice at 217–18 (citing Mayo, 566 U.S. at 75–77). 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. Kappos, 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
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 (Gottschalk v. 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
Appeal 2019-001537
Application 15/275,818

12
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 turn 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
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.
As indicated above, the PTO recently published revised guidance on
the application of § 101 with regard to the first step of the Alice/Mayo test
(i.e., Step 2A of the USPTO’s Subject Matter Eligibility Guidance as
incorporated into MPEP § 2106 and as updated in October 2019). Thus,
Appeal 2019-001537
Application 15/275,818

13
under Step 1 of the Guidance, as revised, we determine whether the claimed
subject matter falls within the four statutory categories: process, machine,
manufacture, or composition of matter. Step 2A of the Guidance is two-
pronged, under which we 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)).
See 84 Fed. Reg. at 54–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then, under Step
2B, 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 84 Fed. Reg. at 56.
C. Analysis
Guidance Step 1
The Appellant is incorrect in arguing that the claims are “directed to
seismic exploration that starts from seismic data” (Appeal Br. 13).
Nevertheless, we find that, under Step 1 of the Guidance, claim 1 falls
Appeal 2019-001537
Application 15/275,818

14
within the four statutory categories of patent subject matter identified by 35
U.S.C. § 101. Specifically, claim 1 recites a “method for processing input
seismic data d collected over a surveyed subsurface”—i.e., a process that
includes several recited steps. That, however, does not end our inquiry.
Alice, 573 U.S. at 224 (“[M]any computer-implemented claims are formally
addressed to patent-eligible subject matter. But if that were the end of the §
101 inquiry, an applicant could claim any principle of the physical or social
sciences by reciting a computer system configured to implement the relevant
concept.”).
Guidance Step 2A, Prong 1
Under the first prong of Step 2A, we find that claim 1 sets forth or
describes judicial exceptions (i.e., abstract ideas) by reciting mathematical
concepts. Specifically, claim 1 involves receiving recorded data d (i.e.,
gathering data d) from seismic streamers deployed on streamers that travel in
water, generating and processing data using an “transform L” and “transform
L′” by applying certain mathematical equations—i.e., Equations (5), (6 – a),
and (6 – b), as we discussed above in our claim construction section, and
then generating an image of the surveyed subsurface based on an output
particle motion dataset. Under the Revised Guidance, mathematical
concepts in the form of equations constitute abstract ideas. 84 Fed. Reg. at
52. Flook, 437 U.S. at 594 (‘‘[T]he discovery of [a mathematical formula]
cannot support a patent unless there is some other inventive concept in its
application.”); SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed.
Cir. 2018) (holding that claims to a “series of mathematical calculations
based on selected information” are directed to abstract ideas).
Appeal 2019-001537
Application 15/275,818

15
Guidance Step 2A, Prong 2
Next, we address the second prong of Step 2A to determine whether
additional elements in the claim integrate the judicial exception into a
practical application. The “additional elements” in claim 1 merely recite, at
a high level of generality, using conventional devices such as seismic
receivers deployed on existing streamers for receiving (i.e., gathering) data5
and a processor for “applying a transform L′” as well as “generating an
image of the surveyed subsurface” using the output particle motion dataset.
But the claim as a whole, taken together with these additional elements
individually and in combination, does not integrate the judicial exception
into a practical application because these additional elements constitute
insufficient post-solution activity. See also Flook, 437 U.S. at 590 (“[T]he
Pythagorean theorem would not have been patentable, or partially
patentable, because a patent application contained a final step indicating that
the formula, when solved, could be usefully applied to existing surveying
techniques.”).
Here, the Appellant does not direct us to facts establishing, e.g., an
additional element that applies or uses the abstract ideas in an improvement
in a computer’s function(s) or an improvement to other technology or
technical field. Revised Guidance, 84 Fed. Reg. at 55. Instead, the
additional elements relate to mere data gathering using conventional
techniques at a high level of generality, processing that data using
mathematical equations, and displaying an image reflecting the output
dataset. Alice, 573 U.S. at 222 (“[T]he formula itself [in Flook] was an

5 See Spec. ¶¶ 3–4, 12.
Appeal 2019-001537
Application 15/275,818

16
abstract idea . . . and the computer implementation was purely
conventional.” (internal citation omitted)). Cf. id. at 223 (“The invention in
Diehr used a ‘thermocouple’ to record constant temperature measurements
inside the rubber mold—something ‘the industry ha[d] not been able to
obtain.’” (internal citation omitted)).
Guidance Step 2B
Under Step 2B, we also discern no error in the Examiner’s
determination that the additional elements, taken individually and in
combination, do not result in the claim, as a whole, amounting to
significantly more than the judicial exception (Ans. 14; Final Act. 10). As
we discussed above, it appears claim 1 simply appends well-understood,
routine, conventional activities previously known to the industry, specified
at a high level of generality, to the abstract ideas (mathematical concepts).
Revised Guidance, 84 Fed. Reg. at 56. Mayo, 566 U.S. at 82 (“[S]imply
appending conventional steps, specified at a high level of generality, to laws
of nature, natural phenomena, and abstract ideas cannot make those laws,
phenomena, and ideas patentable.”).
In view of our analysis under the steps of the PTO’s Revised
Guidance as updated in October 2019, we conclude that claim 1 is directed
to patent ineligible subject matter. Therefore, we uphold the Examiner’s
rejection.
Appeal 2019-001537
Application 15/275,818

17
IV. CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. §/Basis Reference(s) Affirmed Reversed
1–17, 19–21 Obviousness-Type
Double Patenting
’181 Patent
(Poole ’181)
1–17, 19–21
1–17, 19–21 101 None 1–17, 19–21
Overall
Outcome
1–17, 19–21

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED