Holly Dail et al.

Patent Trials and Appeals Board

Nov 1, 2019

14681886 - (D) (P.T.A.B. Nov. 1, 2019)

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.
14/681,886 04/08/2015 HOLLY DAIL 60403-0012 3278
146042 7590 11/01/2019
Hickman Palermo Becker Bingham LLP / Climate Corp.
1 ALMADEN BOULEVARD
FLOOR 12
SAN JOSE, CA 95113
EXAMINER
HO, ANTHONY
ART UNIT PAPER NUMBER
2817
NOTIFICATION DATE DELIVERY MODE
11/01/2019 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):
usdocket@h35g.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HOLLY DAIL and STEPHAN HOYER

Appeal 2018-008351
Application 14/681,886
Technology Center 2800
____________

Before BRADLEY R. GARRIS, JEFFREY T. SMITH, and
BRIAN D. RANGE, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–19. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
Appellant claims a method performed by one or more computing
devices comprising: using a data analysis module to determine historical

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 Climate
Corporation. Appeal Br. 1.
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difference parameters representing differences between historical ensemble-
based weather forecasts and corresponding historical weather observations;
receiving raw ensemble-based weather forecasts comprising raw ensemble
members; using a data extraction module to determine a series of
correlations from the raw ensemble-based weather forecasts; using a
distribution calibration module to create and store distributions from the raw
ensemble members and applying the historical difference parameters to
modify the distributions to create improved distributions; and using a
reconstruction calibration module to create improved ensemble members
from the improved distributions and the series of correlations and creating
improved ensemble-based weather forecasts from the improved ensemble
members (independent claim 1). Appellant also claims non-transitory
storage media storing instructions which, when executed by one or more
computing devices, cause performance of the method steps recited in claim 1
(remaining independent claim 11).
A copy of representative claim 1, taken from the Claims Appendix of
the Appeal Brief, appears below.
1. A method comprising:
receiving over a computer network and storing in an ensemble
database, electronic digital data representing a plurality of historical
ensemble-based weather forecasts corresponding to one or more years
of weather forecasts, each of the forecasts comprising a plurality of
historical ensemble members, wherein each of the historical ensemble
members comprise [sic, comprises] a set of forecasted weather
conditions for a plurality of days;
receiving, over the computer network, a plurality of historical
weather observations and storing the plurality of historical weather
observations with the plurality of historical ensemble-based weather
forecasts;
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using a data analysis module, determining a plurality of historical
difference parameters representing differences between the historical
ensemble-based weather forecasts and the corresponding historical
weather observations;
receiving, over the computer network, a plurality of raw ensemble-
based weather forecasts comprising a plurality of raw ensemble
members, wherein each of the plurality of raw ensemble members
comprise [sic, comprises] a set of forecasted weather conditions for a
plurality of days;
using a data extraction module, determining a series of correlations
from the plurality of raw ensemble-based weather forecasts and
storing the series of correlations in computer memory;
using a distribution calibration module, creating and storing one or
more distributions from the plurality of raw ensemble members, and
applying the plurality of historical difference parameters to modify the
one or more distributions to create one or more improved
distributions;
using a reconstruction calibration module, creating improved
ensemble members from the one or more improved distributions and
the series of correlations and creating improved ensembled-based
weather forecasts from the improved ensemble members from the
improved ensemble members [sic] 2;
wherein the method is performed by one or more computing devices.

The Examiner rejects claims 1–19 under 35 U.S.C. § 101 “because the
claimed invention is directed to a judicial exception (i.e., a law of nature, a
natural phenomenon, or an abstract idea) without significantly more” (Final
Office Action (Final) 2). Specifically, the Examiner determines that the
steps recited in the independent claims are directed to an abstract idea and
that the additional elements recited in the independent claims are not

2 Repetition of the phrase “from the improved ensemble members” appears
to be an inadvertent oversight.
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sufficient to make these claims as a whole amount to significantly more than
the abstract idea itself (id. at 2–5).
ANALYSIS
In issues involving subject matter eligibility, our inquiry
focuses on whether the claims satisfy the two-step test set forth by the
Supreme Court in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S.
208 (2014). The Supreme Court instructs us to “first determine
whether the claims at issue are directed to a patent-ineligible concept”
(id. at 216–18), and, in this case, the inquiry centers on whether the
claims are directed to a judicial exception. If the initial threshold is
met, we then move to the second step, in which we “consider 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.”
Id. at 217 (quoting Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 79, 78 (2012)). The Supreme Court describes the
second step 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.’” Id. (quoting Mayo, 566 U.S. at 72–73).
The USPTO recently published revised guidance on the
application of § 101. USPTO’s Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Memorandum”). Under that guidance, we look to whether the claim
recites:
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(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 Memorandum.
The Memorandum guidance instructs us first to determine whether the
claims recite any judicial exception to patent eligibility (i.e., Step 2A, Prong
1). The guidance identifies three judicially-excepted groupings: (1)
mathematical concepts; (2) certain methods of organizing human behavior;
and (3) mental processes. We focus here on the judicially-excepted
grouping of mathematical concepts.
Representative claim 1 recites “using a data analysis module,
determining a plurality of historical difference parameters representing
differences between the historical ensemble-based weather forecasts and the
corresponding historical weather observations.” The historical difference
parameters can be derived mathematically from the difference between
historical forecasts and corresponding historical observations (e.g., the
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difference between historical forecasted and observed temperatures (see,
e.g., Figs. 3A–3C)). The historical difference parameters are applied to
distributions to correct for errors or bias (Spec. ¶ 43).
Claim 1 also recites “using a distribution calibration module, creating
and storing one or more distributions from the plurality of raw ensemble
members, and applying the plurality of historical difference parameters to
modify the one or more distributions to create one or more improved
distributions.” The distribution calibration module is based on a chosen
calibration approach for creating a probability distribution (id. ¶ 47) such as
a left-censored generalized extreme value distribution (id. ¶ 52). The
Specification explicitly discloses that the left-censored generalized extreme
value distribution utilizes mathematical equations and relationships (id. ¶¶
71–77). Thus, the Specification supports a determination that the quoted
step of using a distribution calibration module creates distributions utilizing
mathematical equations and relationships and applies the mathematically
derived historical difference parameters to modify these distributions to
create improved distributions.
Our determination that the previously quoted limitations of claim 1
recite the judicially-excepted grouping of mathematical concepts is
supported by Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758
F.3d 1344, 1350 (Fed. Cir. 2014) (holding that claims to a “process of
organizing information through mathematical correlations” are directed to an
abstract idea). See also Memorandum, n. 12. We observe that the
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Examiner’s abstract idea determination regarding the above quoted and other
limitations of claim 1 relies on Digitech (Final 4).3
Appellant argues “[t]here is no abstract idea ‘recited in or described
by’ the claims” (Appeal Br. 5).
However, the proposition that claim 1 does not recite the judicial
exception of mathematical concepts is undermined by our earlier analysis of
the quoted claim limitations and Appellant’s Specification. Therefore, we
maintain our determination that, under Step 2A, Prong 1 of the
Memorandum, claim 1 recites the judicial exception of mathematical
concepts.
Having determined that claim 1 recites a judicial exception, our
analysis under Step 2A, Prong 2 of the Memorandum now turns to whether
there are additional elements that integrate the judicial exception into a
practical application. See MPEP § 2106.05(a)–(c), (e)–(h) (9th ed., rev.
08.2017 (Jan. 2018)).
Claim 1 recites additional limitations that focus on addressing
problems arising from modern forecasting models such as biased weather
forecasts generated by use of a coarse grid at a generalized, rather than
locally tailored, scale (see, e.g., Spec. ¶¶ 8–9). These additional limitations

3 The Examiner’s abstract idea determination also appears to rely on the
belief that claim 1 “could be carried out as a purely mental process, at least
in principle” (Final 5). Appellant persuasively explains that the method
steps recited in the independent claims “cannot be performed in the human
mind or on paper and are inextricably tied to the ability of the computing
device to perform the sampling” (Appeal Br. 11). We observe that the
Examiner acknowledges but does not disagree with Appellant’s explanation
(Ans. 5).
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include “using a reconstruction calibration module, creating improved
ensemble members from the one or more improved distributions and the
series of correlations and creating improved ensemble-based weather
forecasts from the improved ensemble members.” The quoted limitations
create improved ensemble-based weather forecasts that are described as
significantly improved for accuracy and granularity (e.g., more accurate
predictions, increased accuracy based on seasonal dependence of weather,
and predictions at a field location level which are otherwise not available
from public and/or commercial weather data sources) (Spec. ¶ 129).
We conclude that these limitations integrate the recited judicial
exception of mathematical concepts into a practical application. In
particular, the above quoted limitations apply the recited mathematical
concepts to create significantly improved ensemble-based weather forecasts
that overcome problems of modern forecasting models (id. ¶¶ 8–9, 129). In
this way, the recited mathematical concepts are used to improve
meaningfully the technology of weather forecasting (see, e.g., MPEP
§ 2106.05(a)(II) (“The courts have also found that improvements in
technology beyond computer functionality may demonstrate patent
eligibility”)).
Ultimately, we conclude that Appellant’s claimed invention is
integrated into a practical application, and under the guidance provided in
the Memorandum, claims 1–19 have not been shown to be patent-ineligible
because they are not “directed to” a judicial exception.
We reverse the Examiner’s rejection under 35 U.S.C. § 101 of claims
1–19.

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–19 101 Eligibility 1–19

REVERSED