KONINKLIJKE PHILIPS N.V.

Patent Trials and Appeals Board

Dec 24, 2020

2019001892 (P.T.A.B. Dec. 24, 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.
15/336,103 10/27/2016 WARNER RUDOLPH THEOPHILE TEN KATE 2015P01251US 6582
24737 7590 12/24/2020
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
ALKAFAWI, EMAN A
ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
12/24/2020 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WARNER RUDOLPH THEOPHILE TEN KATE
and JINGHAN FENG
Appeal 2019–001892
Application 15/336,103
Technology Center 2800
Before BEVERLY A. FRANKLIN, SHELDON M. McGEE, and
JANE E. INGLESE, Administrative Patent Judges.
FRANKLIN, 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 1–19. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

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 Koninklijke
Philips N.V. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of Appellant’s subject matter on appeal
and is set forth below:
1. An activity of daily living, ADL, monitoring system for
monitoring ADLs of a person within an environment, wherein
the ADL monitoring system comprises:
a set of sensors each adapted to respond to an activity and
to generate a sensor output signal representative of the activity;
a data processing unit adapted to receive the sensor output
signals and to process the sensor output signals, to:
generate an activity density map which identifies the level
or type of a particular activity within particular timeslots;
generate a reference map which indicates a reference value
or range of values of activity levels or types within the particular
timeslots;
compare the level or type of a particular activity in the
individual timeslots of the activity density map with the
reference spread of activity levels or types in the corresponding
timeslots of the reference map;
determine a size of correspondence of the level or type of
activity arising in each timeslot of the activity density map with
the reference spread of activity levels or types in the
corresponding timeslots of the reference map to identify initial
anomaly points;
for the initial anomaly points, perform a test of activity
permutations to find timeslots of the activity density map which
may be reordered to remove as many of the initial anomaly points
as possible; and
identify the remaining anomaly points as a first anomaly
indication.

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Lessick US 2010/0040193 Al Feb. 18, 2010
Tran US 2014/0104059 Al Apr. 17, 2014
Ten Kate US 2015/0317890 Al Nov. 5, 2015
Cook et al. (“Cook”) US 2016/0314255 Al Oct. 27, 2016
THE REJECTIONS
1. Claims 1–19 are rejected 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.
2. Claims 1, 4–6, 10, 13, and 15 are rejected under 35 U.S.C.
§ 102(a)(1) as being anticipated by Tran.
3. Claims 2, 3, 11, and 12 are rejected under 35 U.S.C. § 103 as
being unpatentable over Tran as applied to claim 1 above, and further in
view of Ten Kate.2
4. Claims 7 and 14 are rejected under 35 U.S.C. § 103 as being
unpatentable over Tran as applied to claim 6 above, and further in view of
Cook.
5. Claims 8 and 9 are rejected under 35 U.S.C. § 103 as being
unpatentable over Tran.
6. Claims 16–18 are rejected under 35 U.S.C. § 103 as being
unpatentable over Tran as applied to claim 15 above, and further in view of
Ten Kate and evidenced by Lessick.

2 Ten Kate is a translation of WO2014/083465 of the PCT/IB2013/060077
published on June 5, 2014.
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7. Claim 19 is rejected under 35 U.S.C. § 103 as being unpatentable
over Tran, as applied to claim 15 above, and further in view of Cook.
OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”). After considering the
argued claims and each of Appellant’s arguments, we are persuaded of
reversible error in the appealed rejections. Accordingly, we reverse each of
the Examiner’s rejections on appeal essentially for the reasons set forth in
the record by Appellant, with the following emphasis.
Rejection 1
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 Banklnt’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. Id. 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.”
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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. 52, 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 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
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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). “[Merely requiring] generic computer implementation[] fail[s] to
transform that abstract idea into a patent-eligible invention.” Id.
The PTO 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 M.P.E.P. § 2106).
USPTO’s January 7, 2019, 2019 Revised Patent Subject Matter Eligibility
Guidance (“Revised Guidance”). 84 Fed. Reg. 50 (Jan. 7, 2019). Thus,
under Step 1 of the Guidance, we determine whether the claimed subject
matter falls within the one of 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
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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.
We turn now to our analysis below.
Guidance Step 1
Following the aforementioned revised guidance, initially, there is no
dispute that claims 1–19 fall within one of the four statutory categories of
invention under Step 1 of the Guidance. Accordingly, we turn next to
Step 2A(1) of the Revised Guidance.
Guidance Step 2A, Prong 1
Under Step 2A(1), we find that claim 1 recites a judicial exception in
the form of mathematical concepts such as, for example, reciting the element
to “generate an activity density map which identifies the level or type of a
particular activity within particular timeslots” mentioned by the Examiner on
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page 3 of the Final Office Action. The Examiner goes on to identify other
recited claim elements which the Examiner believes also are in the form of
mathematical concepts, which we address, infra.3, 4 Id. Thus, claim 1

3 These elements are “generate an activity density map which identifies the
level or type of a particular activity within particular timeslots; generate a
reference map which indicates a reference value or range of values of
activity levels or types within the particular timeslots; compare the level or
type of a particular activity in the individual timeslots of the activity density
map with the reference spread of activity levels or types in
the corresponding timeslots of the reference map; determine a size of
correspondence of the level or type of activity arising in each timeslot of the
activity density map with the reference spread of activity levels or types in
the corresponding timeslots of the reference map to identify initial anomaly
points; for the initial anomaly points, perform a test of activity permutations
to find timeslots of the activity density map which may be reordered to
remove as many of the initial anomaly points as possible; and identify
the remaining anomaly points as a first anomaly indication”. The Examiner
states that these quoted limitations are no more than software instructions
implemented in a computerized system. Final Act. 3.

4 Other identified elements include: “process the sensor output signal;
generate an activity density map which identifies the level or type of . .
.; compare the level or type of a . . . ; determine a size correspondence
timeslots of the . . .; perform a test activity. . . reordered to remove as many
. . .; identify the remaining . . .” The Examiner states that these elements are
a set of instructions implemented in a computerized system. Final Act. 3.
The Examiner states that these steps are a mere set of instructions to be
applied on the collected data, these steps being: generating a map reference
corresponding to timeslots and indicating a certain type of activity level, and
then determining the size of correspondence of the level/type, performing a
test of activity permutations . . . and then reorder, remove that anomaly, and
finally identifying the anomaly to be implemented within a software code in
a generic computing device. Final Act. 3–4.

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recites a judicial exception in the form of mathematical concepts5. SAP
America, 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).
Guidance Step 2A, Prong 2
As a result, we next turn to Step 2A(2) of the Revised Guidance to
determine whether the claims integrate the judicial exception into a
practical application. Diehr, 450 U.S. at 187 (“A claim drawn to subject
matter otherwise statutory does not become nonstatutory simply because it
uses a mathematical formula.”).
We refer to Appellants’ position as presented on pages 10–32 of the
Appeal Brief and pages 2–7 of the Reply Brief, which we do not repeat
herein pertaining to Appellant’s stated position in this regard.
It is the Examiner’s position that, in contrast to Diehr, the
combination of elements recited in Appellants’ claim 1 does not
impose meaningful limits on the mathematical operation because the claim
is reciting the collection and analysis of received data. Final Act. 4. The
Examiner states that the claims do not include additional elements that are
sufficient to amount to significantly more than the judicial exception
because the extra limitation of “a set of sensors each adapted to respond to
an activity and generate sensor output signal of the activity,” is no more than
data collection, wherein data is collected using generic and routine
device/sensors cited at high level of generality. Final Act. 4. The Examiner
also states that the data collection is no more than extra solution activity

5 Density mapping typically involves interpolation methods (a form of
numerical analysis) which falls under mathematical concepts.
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necessitated by the process. The Examiner states that the limitation of
“data processing unit” is no more than a generic computing device recited at
a high level of generality. The Examiner concludes that recitation of a
general purpose machine at high level of generality would not amount to
more than the abstract idea itself. Id.
Appellant argues that the present claims are directed to software-
based improvements according to specific means for the reasons set forth on
pages 16–19 of the Appeal Brief. Reply Br. 2. For the reasons stated
therein, Appellant submits that claim 1 is directed to a specific means by
which the activity of daily living is assessed, which includes at least
performing a test of permutations as candidates for reordering to remove
anomalies, thus overcoming shortcomings to prior approaches.6 As a result,
Appellant states that the claimed subject matter improves upon the
conventional technology of activity of daily living monitoring through the
specific claimed permutation process. Appeal Br. 18.
As mentioned supra (particularly with respect to footnotes 2 and 3),
the Examiner posits that the claimed permutation process is a mathematical
concept and therefore abstract. Further, in response to Appellant’s
aforementioned argument, on page 6 of the Answer, the Examiner reiterates
that the applied steps represent mere application of a statistical algorithm of
the collected data that generates a pattern, having outliers of such pattern/

6 The associated claim recitations are: “for the initial anomaly points,
perform a test of activity permutations to find timeslots of the activity
density map which may be reordered to remove as many of the initial
anomaly points as possible; and identify the remaining anomaly points
as a first anomaly indication.”

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anomalies detected, and that there is no improvement out of basic statistical
application on collected data. Ans. 6. The Examiner states that there is no
improvement by the use of the step of removing an outlier within a statistical
or mathematical algorithm to form a data set, and queries that “if it is an
improvement, then how will it improve the machine itself?” Ans. 6.
In the Reply Brief, Appellant argues that the Examiner’s contention
that there is no improvement in a device that utilizes improvements in
software is a mistaken belief that software cannot make patent eligible
improvements to systems and devices, and refers to sub-section (a) of the
Appeal Brief (that begins on page 10 of the Appeal Brief). Reply Br. 3–4.
We agree with Appellant that software can make non-abstract improvements
to computer technology. Appeal Br. 11. Software is not automatically an
abstract idea, even if performance of a software task involves an underlying
mathematical calculation or relationship. See, e.g., Thales Visionix, Inc. v.
United States, 850 F.3d 1343 (“That a mathematical equation is required to
complete the claimed method and system does not doom the claims to
abstraction.”); McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d
1299, 1316 (Fed. Cir. 2016) (methods of automatic lip synchronization and
facial expression animation using computer-implemented rules were not
directed to an abstract idea); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327,
1335 (Fed. Cir. 2016) (claims to self-referential table for a computer
database were not directed to an abstract idea).
The Examiner’s response (discussed, supra) overlooks the point being
made by Appellant that the claimed permutation allows for a specific
solution, that being a system which is able to detect anomalies in daily
activity patterns, while allowing the order of activities to permute. Appellant
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discusses this on page 18 of the Appeal Brief with reference to page 4, lines
26–27 of the present Specification, and also refers to other parts of the
Specification in this regard (Appeal Br. 18–19). Appellant explains that the
claimed permutation allows for an improvement in the system itself used by
a caregiver, and realizes a robustness to changes in patterns of a user. Appeal
Br. 19. As disclosed in the Specification, the system is implemented as an
algorithm to detect anomalies in the daily activities of elderly people. Spec.
p. 36, ll. 24–25. A particular aspect of the algorithm is that it accounts for
possible permutations in the activities. Spec. p. 36, ll. 25–26. The analysis
through the anomaly detection provides an automated method for
detecting specific anomalous timeslot of residents. Such detection
aids caregivers in the monitoring process, by alerting them so they can find
out what exactly is the problem. Spec. p. 36, ll. 26–29. Appeal Br. 19.
In view of the above, we are persuaded by Appellant’s
aforementioned arguments and determine that the claim recitations integrate
the judicial exception into a practical application, and thus determine that the
claimed subject matter has been shown to be patent-eligible. We thus need
not proceed to Guidance, Step 2B of the Revised Guidance in making our
determinations herein.
In view of the above, we reverse Rejection 1.

Rejections 2–7
The dispositive issue is whether the claim recitation of “for the initial
anomaly points, perform a test of activity permutations to find timeslots of
the activity density map which may be reordered to remove as many of the
initial anomaly points as possible” is anticipated by Tran.
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On page 10 of the Final Office Action, the Examiner refers to certain
teachings of Tran, and posits that these teachings anticipate the
aforementioned claim element. Therein, the Examiner states in part the
following (making citations to Tran):
. . . [0087–0088] wherein in each iteration a certain detected
abnormality to be addressed “recommendations", which reads on
“remove as many of the initial anomaly as possible”, also the
activities are associated with a defined time period as in [0087–0088],
Moreover, [0116–0117] wherein contacting the person to make sure
he/she does not need help reads on “remove as many of the initial
anomaly points as possible”. Moreover, [0090-0091] “performed
iteratively until the performance of the analyzer in classifying the test
set reaches an optimal point”, “time series model”, and wherein
different parameters to be tested, and “unexpected patterns” reads
on “permutations”. Moreover, [0089] wherein change detection such
as weakness, change in walking pattern, loss of balance read on
“activity permutation”.

Appellant states that ¶ 87 of Tran appears to describe “pseudo-code
for one embodiment of a pattern recognizer to assist the patient”, and that
¶ 88 of Tran discloses the following:
[0088] Through various software modules 50-80, the system monitors
the behavioral patterns of the patient and can intervene if necessary.
For example, the system can detect that the oven is on for an
excessive amount of time and can turn off the oven using commands
communicated over the mesh network. Authorized users 210 can see a
display of the patient's activities on the screen using data securely
transmitted over the Internet from the base station 20.

Reply Br. 12.

Appellant states that as best as can be understood, the Examiner posits
that Tran performs a test of activity permutations by looped or repeated
iterations of the information disclosed in the table in ¶ 88 of Tran that
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reveals changes from normal activity patterns, and that these iterations are
allegedly performed to find time slots for the patterns that may be reordered
to remove as many of the initial anomaly points as possible. Reply Br. 12–
13. Appellant disagrees with this interpretation of Tran. Appeal Br. 47.
Reply Br. 13. Appellant first explains that the claimed permutation is not
any permutation, but is a test of activity permutations. Reply Br. 12.
Appellant further explains that simply performing what the Examiner
appears to allege to be an automatic updating of data during continual
monitoring according to Tran is not a test of permutations within the
meaning of this claim term, and is not an interpretation consistent with
Appellant’s disclosed embodiments as explained below. Reply Br. 12–13.
We agree.
Appellant further explains that the permutations in Tran are not to find
time slots that can be reordered. Appellant explains that the time slots,
which the Examiner appears to believe is general enough to be construed as
changing the sequence of the time series models (see, e.g., page 38 of
the Final Office Action, referring to ¶ 91 of Tran, and/or reordering frames
in the time series models (see, e.g., page 38 of the Final Office Action,
referring to ¶¶ 95–96 of Tran), are not reordered. Reply Br. 13. Appellant
states that ¶ 91 of Tran merely discloses that “predictive models” comprise
“time series models”. Reply Br. 13.
Appellant states that ¶¶ 95–96 of Tran, and in particular, ¶ 96,
discloses “the Markov model is formed for a reference pattern from a
plurality of sequences of training patterns,” and “the hidden Markov
model is used to derive a set of reference pattern templates, each template
representative of an identified pattern in a vocabulary set of reference
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treatment patterns,” and “the Markov model reference templates are next
utilized to classify a sequence of observations into one of the reference
patterns based on the probability of generating the observations from each
Markov model reference pattern template. Appellant states that
during recognition, the unknown pattern can then be identified as the
reference pattern with the highest probability in the likelihood calculator”.
Reply Br. 13.
Appellant argues that none of aforementioned sections of Tran
disclose or suggest that the time series is reordered during the monitoring of
the patient based on the anomaly or changed pattern. Reply Br. 13. Stated
otherwise, Appellant submits that none of these sections discloses
or suggests a test of activity permutations to find timeslots of the activity
density map which may be reordered to remove as many of the initial
anomaly points as possible. Reply Br. 13–14. We are persuaded by this line
of argument.
In view of the above, we reverse Rejection 2. We also reverse
Rejections 3–7 for the same reasons because the Examiner does not rely
upon the additionally applied references to cure the stated deficiencies of
Tran.
CONCLUSION
We reverse the Examiner’s decision.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Reversed Affirmed
1–19 101 Eligibility 1–19
1, 4–6, 10,
13, 15
102 Tran 1, 4–6, 10,
13, 15

2, 3, 11, 12 103 Tran, Ten Kate 2, 3, 11, 12
7, 14 103 Tran, Cook 7, 14
8, 9 103 Tran 8, 9
16–18 103 Tran, Ten Kate,
Lessick
16–18
19 103 Tran, Cook 19
Overall
Outcome
1–19

REVERSED