John Miller et al.

Patent Trials and Appeals Board

Nov 15, 2021

2021001506 (P.T.A.B. Nov. 15, 2021)

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.
13/246,971 09/28/2011 John P. Miller R11.12-1066 4587
27367 7590 11/15/2021
WESTMAN CHAMPLIN & KOEHLER, P.A.
121 South Eighth Street
Suite 1100
Minneapolis, MN 55402
EXAMINER
SATANOVSKY, ALEXANDER
ART UNIT PAPER NUMBER
2863
NOTIFICATION DATE DELIVERY MODE
11/15/2021 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@wck.com
tsorbel@wck.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOHN P. MILLER and MICHAEL ZAK
____________

Appeal 2021-001506
Application 13/246,971
Technology Center 2800
____________

Before JEFFREY B. ROBERTSON, JAMES C. HOUSEL, and
JANE E. INGLESE, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL1

STATEMENT OF THE CASE

Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 2, 5–8, 14, 15, 18–21, and 31–33. Appeal Br. 10. We
have jurisdiction pursuant to 35 U.S.C. § 6(b).
We AFFIRM.

1 This Decision includes citations to the following documents:
Specification filed September 28, 2011 (“Spec.”); Non-Final Action dated
November 28, 2018 (“Non-Final Act.”); Final Office Action dated April 6,
2020 (“Final Act.”); Appeal Brief filed October 5, 2020 (“Appeal Br.”);
Examiner’s Answer mailed November 2, 2020 (“Ans.”); and Reply Brief
filed December 29, 2020 (“Reply Br.”).
2 We use the term “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Rosemount Inc. as the real party in
interest. Appeal Br. 3.
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THE INVENTION
Appellant states the invention relates to transmitters of the type used
to measure a process variable of an industrial process. Spec. ¶ 1.
Claim 1 is representative and reproduced below from the Claims
Appendix to the Appeal Brief:
1. A pressure transmitter for use in measuring a pressure of
a process fluid in an industrial process, comprising:
a pressure sensor having a pressure output related to the
pressure of the process fluid;
measurement circuitry configured to digitize the pressure
output and produce a sequence of samples of the pressure
output, each sample representing a value of the pressure
output;
a microprocessor configured to:
detect a pressure change limit violation by:
calculating a series of differences between the values
represented by successive samples in the sequence of samples;
comparing each of the differences to a pressure change
limit (α);
and
detecting that one or more of the differences exceeds the
pressure change limit (α);
remove the differences that exceed the pressure change
limit (α) from the series of differences to form a modified
series of differences;
calculate a standard deviation using the modified series of
differences; and
provide an output based on the calculated standard
deviation that is indicative of a diagnostic condition of the
industrial process.
Appeal Br., Claims App. 29.
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Claims 14 and 31 are also independent, where claim 14 recites a
method used to measure pressure of a process fluid having similar
limitations as recited in claim 1, and claim 31 recites a method used to
measure pressure of a process fluid involving a different method of dividing
the digitized pressure values for calculating a standard deviation than recited
in claim 1. Appeal Br. 30–32.

REJECTION
The Examiner rejected claims 1, 2, 5–8, 14, 15, 18–21, and 31–33
under 35 U.S.C. § 101 as directed to a judicial exception without
significantly more. Final Act. 2–6; see also Non-Final Act. 5–10.

PRINCIPLES OF LAW
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 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
and Alice. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). 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
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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 (1853))); 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
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
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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.
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101.3 The Manual of
Patent Examining Procedure (“MPEP”) now incorporates this revised
guidance and subsequent updates at § 2106 (9th ed. Rev. 10.2019, rev. June
2020).4
Under MPEP § 2106, we first look to whether the claim recites:

3 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“2019 Revised Guidance”). In response to received public
comments, the Office issued further guidance on October 17, 2019,
clarifying the 2019 Revised Guidance. USPTO, October 2019 Update:
Subject Matter Eligibility (the “October 2019 Update”). “All USPTO
personnel are, as a matter of internal agency management, expected to
follow the guidance.” 84 Fed. Reg. at 51; see also October 2019 Update at
1.
4 All references to the MPEP are to the Ninth Edition, Revision 10.2019
(Last Revised June 2020), unless otherwise indicated.
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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) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (“Step 2A, Prong Two”).5
MPEP § 2106.04(a), (d).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application,6 do we then look, under
Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional activity” in the field; 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.7
MPEP § 2106.05(d).

5 “Examiners evaluate integration into a practical application by:
(1) identifying whether there are any additional elements recited in the claim
beyond the judicial exception(s); and (2) evaluating those additional
elements individually and in combination to determine whether they
integrate the exception into a practical application.” MPEP § 2106.04(d)(II).
6 This corresponds to Alice part one where it is determined whether the claim
is “directed to” an abstract idea. See Alice, 573 U.S. at 219. If a claim is
“not directed to an abstract idea under step one of the Alice analysis, we do
not need to proceed to step two.” Enfish, LLC v. Microsoft Corp., 822 F.3d
1327, 1339 (Fed. Cir. 2016).
7 This corresponds to Alice part two where it is determined whether the
claim “contains an ‘inventive concept’ sufficient to ‘transform’ the claimed
abstract idea into a patent-eligible application.” Alice, 573 U.S. at 221.
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DISCUSSION
The Examiner’s Rejection
The Examiner found that claim 1 satisfies Step 1 of the eligibility
analysis. Final Act. 3. Under Step 2A, Prong One, the Examiner found
claim 1 recites abstract ideas in the form of mathematical concepts and
mental processes by reciting that the microprocessor is configured to
perform “calculating” and “comparing” operations. Id. at 3–4. The
Examiner found that under Step 2A, Prong Two, claim 1 does not
sufficiently integrate the identified judicial exceptions into a practical
application because the additional limitations recited therein only generally
link the use of the judicial exception to a particular technological
environment or field of use, and the generic presentation of collected and
analyzed data amounts to insignificant extra-solution activity, which does
not reflect an improvement to technology or a technical field. Id. at 4–6.
The Examiner found that under Step 2B, claim 1 does not include additional
elements that amount to significantly more than the judicial exception.
Id. at 6; Non-Final Act. 5–10.

Appellant’s Arguments
Appellant argues the “mental concepts” (Step 2A, Prong 1) cited by
the Examiner are performed by the microprocessor of the transmitter and as
such, are not mental concepts. Appeal Br. 17. Appellant contends claim 1
satisfies Step 2A, Prong 2, because claim 1 recites a practical and limited
application of the cited judicial exception that improves pressure transmitter
and process diagnostics technologies by alleviating or reducing the need for
operators to manually clear generated alerts, control engineers to customize
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alarm triggers, and the requirement of advanced scripting or filtering for off-
line analysis of standard deviation trends. Id. at 17–20. As to Step 2B,
Appellant argues claim 1 includes significantly more than the cited judicial
exception resulting in improvements to process transmitters and process
diagnostics technologies through fewer false detections of abnormal process
conditions. Id. at 21; Reply Br. 2–5.

ANALYSIS
For the reasons discussed below, we are not persuaded the Examiner
erred in determining the claimed subject matter to be patent-ineligible as
directed to a judicial exception without reciting significantly more.
We select independent claim 1 as representative, and address the other
claims to the extent necessary based on Appellant’s arguments (see Appeal
Br. 21–27). 37 C.F.R. § 41.37(c)(1)(iv)(2019).
Initially, there does not appear to be a dispute that claim 1 satisfies
Step 1 of the Guidance. Although the Examiner appears to consider claim 1
to be in the process category (Final Act. 3), which is a more appropriate
analysis for claims 14 and 31, we observe that claim 1 is directed to a
pressure transmitter, which is more appropriately considered to be in the
machine category. Accordingly, claim 1 falls within one of the four
statutory categories of invention. Therefore, we turn next to Step 2A(1) of
the Revised Guidance.

The Judicial Exception
Under Step 2A(1), we agree with the Examiner that claim 1 recites a
judicial exception in the form of mathematical concepts and mental
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processes. Indeed, claim 1 recites “calculating a series of differences
between the values represented by successive samples in the sequence of
samples” and “calculate a standard deviation using the modified series of
differences.” Claim 1 also recites the “comparing each of the differences to
a pressure change limit . . . detecting that one or more of the differences
exceeds the pressure change limit [and] remove the differences that exceed
the pressure change limit.” The Specification discloses a series of
algorithms/equations used to perform the calculations recited in claim 1.
Spec. ¶¶ 22–29. Thus, claim 1 recites abstract ideas in the form of
mathematical concepts and mental processes. See 2019 Revised Guidance,
84 Fed. Reg. 52; see also October 2019 Update 2.
As to the presence of mental processes in claim 1, we are not
persuaded by Appellant’s arguments that because claim 1 recites limitations
that are performed by the microprocessor, such steps are not mental
processes. As correctly pointed out by the Examiner, a mental process may
still exist even if performed with the use of a generic computer as a tool.
Ans. 4, citing October 2019 Update 8; see Intellectual Ventures I LLC v.
Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (“[W]ith the
exception of generic computer-implemented steps, there is nothing in the
claim themselves that foreclose them from being performed by a human,
mentally or with pen and paper.”). In this regard, the Specification provides
examples in Figures 2 and 3 of sixteen variances, which do not appear to
require the use of a computer in order to sort and identify variances that
would exceed a pressure change limit.
However, the mere fact that the claim recites abstract ideas does not
automatically render the claim patent-ineligible. See Diehr, 450 U.S. at 187
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(“[A] claim drawn to subject matter otherwise statutory does not become
nonstatutory simply because it uses a mathematical formula, computer
program, or digital computer.”). As a result, we now turn to Step 2A(2) of
the Revised Guidance to determine whether claim 1 integrates the judicial
exception into a practical application.

Integration into a Practical Application
In Step 2A(2) of the Revised Guidance, we evaluate whether there are
additional elements recited in the claim that integrate the mathematical
concepts or mental processes into a practical application. The Examiner
identified additional elements in the form of a pressure sensor, measurement
circuitry, and a microprocessor providing an output based on the calculated
standard deviation. Final Act. 4. We agree with the Examiner’s well-
reasoned analysis that such recitations only generally link the judicial
exception to a particular technological environment, and represent data
gathering steps, and extra-solution activity, which are insufficient to
integrate the judicial exceptions into a practical application. Id. at 5–6; Ans.
5–7.
In particular, we are not persuaded by Appellant’s argument that
claim 1 represents a practical and limited application of an improved
solution to detect a diagnostic condition of an industrial process over
conventional techniques. Claim 1 recites a pressure transmitter for use in a
generic “industrial process.” Claim 1 recites a “pressure sensor” that is used
to “produce a sequence of samples of the pressure output.” Claim 1 recites a
“microprocessor” that is used to perform the mathematical calculations and
any comparing and detecting steps. Claim 1 also recites “provid[ing] an
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output based on the standard deviation that is indicative of a diagnostic
condition of the industrial process.” Thus, the generic recitations in claim 1
of a “pressure sensor,” “measurement circuitry,” and a “microprocessor” do
not provide further distinguishing features that support Appellant’s position
that claim 1 is integrated into a practical and limited application.
Appellant’s contention that claim 1 “reduces or eliminate[s] the
problems associated with pressure spike measurements resulting in an
evaluation of a diagnostic condition of the industrial process that is less
susceptible to false detections of abnormal conditions than prior art pressure
transmitters” (Appeal Br. 18) (emphasis omitted) illustrates the high level of
generality in claim 1. In particular, the terms “diagnostic condition,”
“industrial process,” and “abnormal conditions” are generic terms that do not
suffice to serve to integrate the mathematical concepts or mental processes
into a practical application.
Also, the Specification broadly describes “industrial processes” as
including “chemical refineries, food manufacturing facilities, [and] paper
pulp processing facilities, etc.” Spec. ¶ 2. This supports the Examiner’s
position that claim 1 is only generally linked to a technological environment.
Thus, although Appellant relies on the recitations related to pressure
transmitters and pressure measurements as a limited and practical
application, the breadth of claim 1 in relation to the generic recitation of
“industrial process” indicates that the claim is only generally linked to a
technological environment.
Considering claim 1 as a whole, we determine that these limitations
merely add generic computer activity to gather data for the judicial
exception, which amounts to no more than insignificant extra-solution
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activity and is insufficient to integrate the judicial exception into a practical
application. As discussed above, claim 1 merely provides an output or result
of the mathematical concepts and mental processes recited therein. See
Electric Power, 830 F.3d at 1355 (“merely selecting information, by content
or source, for collection, analysis, and display does nothing significant to
differentiate process from ordinary mental processes . . . .”); see also Flook,
437 U.S. at 595–96 (merely reciting a new and presumably better method for
calculating an alarm limit as part of a catalytic conversion process with no
improvement to the catalytic process itself rendered a claim to such process
patent-ineligible).
Appellant’s arguments with respect to Diehr and Flook, are
inapposite. Reply Br. 5–7. Regarding Diehr, although Appellant asserts that
the claims are directed to a machine that utilizes the mathematical concept to
facilitate an improvement to the technology of process transmitters,
Appellant’s argument is not commensurate in scope with claim 1. That is,
claim 1 merely produces an output from the calculation and in contrast to the
claim in Diehr, does not apply the output to the pressure transmitter. See
Diehr, 450 U.S. at 187, 191.
Regarding Flook, Appellant’s argument that Flook does not apply
because claim 1 recites a new algorithm is incorrect. Reply Br. 6–7; Flook,
437 U.S. at 588 (“For the purpose of our analysis, we assume that
respondent’s formula is novel and useful and that he discovered it”), 594–95
(“Respondent’s application simply provides a new and presumably better
method for calculating alarm limit values.”). Similar to Diehr, the Supreme
Court in Flook stated that merely reciting a new and presumably better
method for calculating an alarm limit as part of a catalytic conversion
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process with no improvement to the catalytic process itself rendered a claim
to such process patent-ineligible. Flook, 437 U.S. at 595–96. As discussed
above, claim 1 merely recites providing an output indicative of a diagnostic
condition of the industrial process.
For all these reasons, claim 1 does not integrate the judicial exception
into a practical application. Thus, claim 1 is directed to the recited abstract
idea.
The Inventive Concept
To determine whether claim 1 provides an inventive concept, we
consider whether claim 1 adds a specific limitation beyond the mathematical
concepts and mental processes that is not well-understood, routine, or
conventional in the field, or simply appends well-understood, routine,
conventional activities previously known to the industry, specified at a high
level of generality, to the mathematical concepts and mental processes.
84 Fed. Reg. at 56.
The Examiner’s position is that the process transmitter,
microprocessor, pressure sensor, and measurement circuity are the additional
elements beyond the judicial exceptions recited in claim 1. Non-Final
Act. 7. The Examiner’s position is that such elements are well-understood
and purely conventional or routine in the art. Id. at 8. For support that the
process transmitter based on a pressure sensor that includes measurement
circuitry and a microprocessor are well-understood, routine, and
conventional, the Examiner cited to prior art of record.8 Id. at 8–9. The

8 Trimble et al., US 7,109,883 B1 issued Sept. 19, 2006; Willcox, US
5,665,899 issued Sept. 9, 1997; Sittler, US 5,731,522 issued March 24,
1998; Henry et al., US 6,311,136 B1 issued Oct. 30, 2001; and Wiklund et
al., US 7,949,495 B2 issued May 24, 2011.
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Examiner also determined the “pressure transmitter for use in measuring a
pressure of a process fluid in an industrial process” in the preamble does not
qualify for significantly more because it only generally links the use of the
judicial exception to a particular technological environment of field of use.
Id. at 9–10.
Appellant contends claim 1 recites limitations that are not routine and
conventional and that are significantly more than the cited judicial exception
resulting in improvements to process transmitter and process diagnostic
technologies similar to the arguments addressed above. Appeal Br. 21.
As discussed above, claim 1 recites components at a high level of
generality. Appellant does not challenge the Examiner’s position, supported
with evidence, that process transmitters with pressure sensors, measurement
circuitry, and microprocessors are well-understood, routine, and
conventional. The Examiner’s position is supported by the description in the
Specification, which describes only a generic block diagram of an industrial
process. Spec. ¶ 13; Fig. 1. The Specification also does not set forth any
particular requirements for the pressure sensor, measurement circuity, and
microprocessor to indicate that non-conventional hardware or software
components would be required to perform the mathematical concepts or
mental process recited in claim 1. See Spec. ¶¶ 11–48. Thus, the additional
elements are merely used as tools or in their ordinary capacities of collecting
data and applying a mental process or mathematical algorithm on a general
purpose computer (microprocessor) and do not result in significantly more
than the identified judicial exceptions.
Therefore, claim 1 does not add specific limitations beyond the recited
mathematical concepts that are not well-understood, routine, or conventional
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in the field, and instead simply appends well-understood, routine,
conventional activities previously known to the industry, specified at a high
level of generality, to the mathematical concepts. Berkheimer v. HP Inc.,
881 F.3d 1360, 1368 (Fed. Cir. 2018).

Remaining claims
Regarding independent claim 14, although claim 14 is a process
claim, it recites similar limitations discussed above with respect to claim 1.
Appellant’s arguments with respect to claim 14 are similar to claim 1.
Appeal Br. 23–24. Accordingly, we are not persuaded by Appellant’s
arguments with respect to claim 14 for the reasons discussed above with
respect to claim 1.
Regarding independent claim 31, although claim 31 recites a different
method of dividing the digitized pressure values for calculating the standard
deviation as discussed above with respect to claim 1, Appellant’s arguments
with respect to claim 31 are similar to claim 1. Appeal Br. 25–26.
Accordingly, we are not persuaded by Appellant’s arguments with respect to
claim 31 for similar reasons as discussed above with respect to claim 1.
Regarding dependent claims 5–8, 15, 18–21, 32, and 33, although
Appellant lists separate headings for those claims, Appellant does not
meaningfully address the limitations in the claims, arguing generally that
“the application of the cited judicial exception is further narrowed to a
practical application, in which the improvement is realized” for each of the
claims. Appeal Br. 21–22, 25, 27. Accordingly, we affirm the Examiner’s
rejection of these claims for the reasons discussed above for independent
claims 1, 14, and 31.
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To summarize, because claims 1, 2, 5–8, 14, 15, 18–21, and 31–33
recite subject matter judicially excepted from patent eligibility, do not
integrate the judicially excepted subject matter into a practical application,
and simply append well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicially excepted subject matter, we sustain the Examiner’s rejection of
claims 1, 2, 5–8, 14, 15, 18–21, and 31–33 under 35 U.S.C. § 101.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 5–8,
14, 15, 18–
21, 31–33
101 Eligibility 1, 2, 5–8, 14,
15, 18–21,
31–33

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