Longoni, GianlucaDownload PDFPatent Trials and Appeals BoardDec 5, 201913834768 - (D) (P.T.A.B. Dec. 5, 2019) Copy Citation 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. 13/834,768 03/15/2013 Gianluca Longoni NSD2012-020 4932 26353 7590 12/05/2019 WESTINGHOUSE ELECTRIC COMPANY, LLC 1000 Westinghouse Drive Suite 141 Cranberry Township, PA 16066 EXAMINER MAPAR, BIJAN ART UNIT PAPER NUMBER 2128 NOTIFICATION DATE DELIVERY MODE 12/05/2019 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): guerral@westinghouse.com spadacjc@westinghouse.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte GIANLUCA LONGONI ____________________ Appeal 2019-000204 Application 13/834,768 Technology Center 2100 ____________________ Before ROBERT E. NAPPI, JENNIFER S. BISK, and JULIET MITCHELL DIRBA, Administrative Patent Judges. DIRBA, Administrative Patent Judge. DECISION ON APPEAL1 Pursuant to 35 U.S.C. § 134(a), Appellant2 seeks review of the Examiner’s rejection of claims 1 and 5–7, which are all claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 This Decision uses the following abbreviations: “Spec.” for the original Specification, filed March 15, 2013; “Final Act.” for the Final Office Action, mailed October 5, 2017; “Appeal Br.” for Appellant’s Appeal Brief, filed May 22, 2018; “Ans.” for Examiner’s Answer, mailed August 7, 2018; and “Reply Br.” for Appellant’s Reply Brief, filed October 9, 2018. 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. According to Appellant, the real party in interest is Westinghouse Electric Company LLC. Appeal Br. 2. Appeal 2019-000204 Application 13/834,768 2 BACKGROUND Appellant’s disclosed embodiments and claimed invention relate to “fluid transients in a nuclear reactor power plant and, more particularly, to evaluating acoustic waves originating from fluid transients in the main steam lines of a boiling water reactor.” Spec. ¶ 1. The Specification explains that a main steam line break (MSLB) in a boiling water reactor “can result in a rapid change in . . . pressure which can lead to generation of acoustic waves propagating throughout the main steam lines and reaching the reactor internals, in particular, the steam dryer.” Id. ¶ 2. An “object of the invention [is] to develop a computational methodology to calculate the dynamic loads on steam dryers . . . resulting from a MSLB event.” Id. ¶ 4. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of determining a dynamic load, acoustic in nature, on a steam dryer resulting from steam hammer3 generated by a main steam line break event in a boiling water reactor, the method comprising: [(1)] developing an acoustic network model of propagation of pressure pulses at sonic velocity through main steam lines of the reactor extending from the main steam line break upstream to the reactor pressure vessel and from the main steam line break through the pressure equalizer to the steam dryer, comprising: identifying a number of main steam lines; identifying a break in one of the number of main steam lines; 3 The term “steamhammer” refers to “unsteady flow conditions and phenomena” in a boiling water reactor. Spec. ¶ 16 (emphasis omitted). Appeal 2019-000204 Application 13/834,768 3 specifying a volume of a pressure equalizer positioned on one side of the break; specifying a volume of a reactor pressure vessel positioned on opposite other side of the break; and indicating more than one junction points in each of the number of main steam lines and identifying a plurality of pipe segments located between the junction points, the more than one junction points comprising: a first point located at the connection of the main steam line with the reactor pressure vessel; a second point corresponding to a location where the break occurs; and a third point located at the connection of the main steam line with the pressure equalizer; [(2)] utilizing the acoustic network model for calculating an acoustic pressure and velocity generated by the steam transient propagating in each of the plurality of main steam lines from the first point to the second point and from the second point to the third point, comprising: [(2a)] employing a computer-based mathematical algorithm to determine A and B integration constants in Equations 1 and 2 for each of the plurality of main steam lines, in each of the plurality of pipe segments located between the junction points: �̂�𝑝(𝑥𝑥,𝜔𝜔) = ρ𝑎𝑎2�𝐴𝐴𝑛𝑛(𝜔𝜔)𝑒𝑒𝑖𝑖𝑘𝑘1𝑛𝑛𝑥𝑥 + 𝐵𝐵𝑛𝑛(𝜔𝜔)𝑒𝑒𝑖𝑖𝑘𝑘2𝑛𝑛𝑥𝑥�𝑒𝑒𝑖𝑖𝑖𝑖𝑖𝑖 (1) 𝑢𝑢�(𝑥𝑥,𝜔𝜔) = �− �𝑖𝑖+𝑈𝑈𝑘𝑘1𝑛𝑛 𝑘𝑘1𝑛𝑛 � 𝐴𝐴𝑛𝑛𝑒𝑒𝑖𝑖𝑘𝑘1𝑛𝑛𝑥𝑥 − � 𝑖𝑖+𝑈𝑈𝑘𝑘2𝑛𝑛 𝑘𝑘2𝑛𝑛 � 𝐵𝐵𝑛𝑛𝑒𝑒𝑖𝑖𝑘𝑘2𝑛𝑛𝑥𝑥� 𝑒𝑒𝑖𝑖𝑖𝑖𝑖𝑖 (2) [(2b)] determining boundary conditions for the steam hammer being evaluated, comprising: specifying density, speed of sound in steam, position in the MSL, and angular frequency; and calculating roots of dispersion for each of the plurality of pipe segments in each of the plurality of main steam lines; Appeal 2019-000204 Application 13/834,768 4 [(3)] determining pressure continuity at the first point for each of the plurality of main steam lines that does not include the break; [(4)] determining mass and pressure continuity for each of the plurality of main steam lines that does not include the break; [(5)] determining pressure continuity at the third point for each of the plurality of main steam lines that does not include the break; [(6)] introducing time-dependent behavior of the steam hammer by applying a mass conservation equation to one or more of the pressure equalizer and the reactor pressure vessel for determining steam volume therein, according to Equation 4: 𝑉𝑉 𝑑𝑑𝑑𝑑 𝑑𝑑𝑖𝑖 = ∑ρ𝑎𝑎2𝐴𝐴𝑢𝑢𝑖𝑖𝑛𝑛 − ∑ρ𝑎𝑎2𝐴𝐴𝑢𝑢𝑜𝑜𝑜𝑜𝑖𝑖 (4) wherein, ρ represents density, ɑ represents speed of sound in steam, μin represents velocity in, μout represents velocity out, and A is an identifier for the main steam line wherein the break is postulated; and [(7)] calculating acoustic velocity for an inlet of each of the plurality of main steam lines. Appeal Br. 9–10 (Claims App.) (footnote and emphases added). THE REJECTION4 Claims 1 and 5–7 stand rejected under 35 U.S.C. § 101 as directed to patent-ineligible subject matter. Final Act. 3–5. 4 The Final Office Action also rejected claims 1 and 5–7 under pre-AIA 35 U.S.C. § 103(a) as obvious over certain references (see Final Act. 6–15), but these rejections were withdrawn following Applicant’s February 5, 2018 amendment. See Advisory Action, mailed March 13, 2018. Appeal 2019-000204 Application 13/834,768 5 ANALYSIS We review the appealed rejection for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv). We have considered all of Appellant’s arguments and any evidence presented. We highlight and address specific findings and arguments for emphasis in our analysis below. Rejection of Claims 1 and 5–7 under 35 U.S.C. § 101 Section 101 of the Patent Act provides that “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” is patent eligible. 35 U.S.C. § 101. But the Supreme Court has long recognized implicit exceptions to this section: “‘Laws of nature, natural phenomena, and abstract ideas are not patentable.’” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)). To determine whether a claim falls within one of these excluded categories, the Court has set out a two-part framework. The framework requires us first to consider whether the claim is “directed to one of those patent-ineligible concepts.” Alice, 573 U.S. at 217. If so, we then examine “the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Alice, 573 U.S. Appeal 2019-000204 Application 13/834,768 6 at 217 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78, 79 (2012)). That is, we examine the claims for an “inventive concept,” “an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Alice, 573 U.S. at 217–18 (alteration in original) (quoting Mayo, 566 U.S. at 72–73). The Patent Office issued guidance regarding this framework. See USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”). Under the Revised Guidance, to decide whether a claim is “directed to” an abstract idea, we evaluate whether the claim (1) recites subject matter falling within an abstract idea grouping listed in the Revised Guidance and (2) fails to integrate the recited abstract idea into a practical application. See Revised Guidance, 84 Fed. Reg. at 51. If the claim is “directed to” an abstract idea, as noted above, we then determine whether the claim recites an inventive concept. The Revised Guidance explains that when making this determination, we should consider whether the additional claim elements add “a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field” or “simply append[] well-understood, routine, conventional activities previously known to the industry.” Revised Guidance, 84 Fed. Reg. at 56. With these principles in mind, we turn to the Examiner’s § 101 rejection. The Judicial Exception—Abstract Idea The Examiner determined the claims are directed to the abstract idea of “mathematical calculations for determining acoustic load of a reactor.” Appeal 2019-000204 Application 13/834,768 7 Final Act. 3. The Examiner further stated, “the claim as currently written seems to recite primarily mathematical calculations, especially those tied to modeling physical phenomena, with the addition of abstract data manipulation in the form of general models.” Id. at 4. Appellant argues that the claims are not abstract because they are directed to “a particular solution” with “specific steps having specific characteristics.” Appeal Br. 5–6. Appellant explains that its particular solution includes improvements to the conventional mathematical formulas. See Reply Br. 2 (“The inventors conceived of modifying Equations 1 and 2 of the known acoustic circuit model and in addition, utilizing a mass conservation equation (i.e., Equation 4) for the steam volumes in the model.”). For the reasons explained below, we agree with the Examiner that the claims recite an abstract idea. The Specification explains that a main steam line break (MSLB) in a boiling water reactor can cause “generation of acoustic waves propagating throughout the main steam lines and reaching the reactor internals, in particular, the steam dryer.” Spec. ¶ 2. “[T]he invention provides a computation method containing a mathematical model for determining a dynamic load . . . on the steam dryer” resulting from a main steam line break. Id. ¶ 5. Specifically, the described method develops “a network model of the main steam lines” and “calculat[es] an acoustic load generated by the fluid transient propagating in the main steam line” using Equations 1, 2, and 4. Id. ¶¶ 5–6. Limitations (1)–(7) of claim 1, quoted above, under their broadest reasonable interpretation, each recite a mental process or mathematical Appeal 2019-000204 Application 13/834,768 8 concept. Specifically, limitation (1) recites “developing an acoustic network model” by “identifying” or “specifying” certain parameters. Limitation (2) recites “utilizing the acoustic network model,” which comprises (2a) “employing a . . . mathematical algorithm” to solve Equations 1 and 2 for “integration constants” and (2b) “determining boundary conditions” by “specifying” or “calculating” other parameters. Limitations (3)–(5) “determin[e]” additional parameters, and limitations (6) and (7) apply Equation 4 and “calculat[e]” a result, respectively. When claimed in a manner similar to the claims here, a claim reciting a mathematical concept or calculation has been determined to be an abstract idea. See Parker v. Flook, 437 U.S. 584, 594 (1978) (“[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, 1167 (Fed. Cir. 2018) (concluding claims for providing statistical analysis of investment data were directed to the abstract idea of analyzing information “using mathematical techniques”); Digitech Image Techs., LLC v. Elec. for Imaging, Inc., 758 F.3d 1344, 1350 (Fed. Cir. 2014) (concluding that “a process of organizing information through mathematical correlations and . . . not tied to a specific structure or machine” to be abstract). Moreover, “identifying,” “specifying,” “indicating,” and “determining” parameters or variables each constitute an observation, evaluation, judgment, or opinion, which could be performed as a mental process, i.e., an abstract idea. See Revised Guidance, 84 Fed. Reg. at 52. Appeal 2019-000204 Application 13/834,768 9 Accordingly, we conclude the claims recite mathematical concepts or mental processes, and thus, an abstract idea.5 Revised Guidance, 84 Fed. Reg. at 52–53 (listing “[m]athematical concepts—mathematical relationships, mathematical formulas or equations, mathematical calculations” and “[m]ental processes--concepts performed in the human mind (including an observation, evaluation, judgment, opinion)” each as one of the “enumerated groupings of abstract ideas”). Integration of the Judicial Exception into a Practical Application If a claim recites a judicial exception, we determine whether the recited judicial exception is integrated into a practical application of that exception by: (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception(s); and (b) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application. If the recited judicial exception is integrated into a practical application, the claim is not directed to the judicial exception. Here, claim 1 recites “a computer-based mathematical algorithm” (limitation (2)). Appeal Br. 9 (Claims App.). Considering claim 1 as a whole, this additional element does not apply or use the abstract idea in a meaningful way. See Alice, 573 U.S. at 223 (“Stating an abstract idea while adding the words ‘apply it with a computer’” is not sufficient to confer patent eligibility.). The Examiner found that “[t]he only computer 5 Merely combining several abstract ideas does not render the combination any less abstract. RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract idea (math) to another abstract idea . . . does not render the claim non-abstract.”). Appeal 2019-000204 Application 13/834,768 10 components recited are generic computer components.” Final Act. 4. We agree. The Specification does not describe the computer used to implement the “computer-based” algorithm, which indicates that the computer is a generic component. See Spec. ¶ 21 (referencing “CHRONOS” computer code, without providing any details). Claim 1 also recites various components of a boiling water reactor, including “main steam lines,” “a pressure equalizer,” and “a reactor pressure vessel.” Appeal Br. 9–10 (Claims App.). But, the claim merely recites that these components are “identif[ied]” or “specif[ied]” as part of “developing an acoustic network model.” Id. (limitation (1)). Such limitations do not integrate an abstract idea into a practical application. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011) (“We have held that mere data-gathering steps cannot make an otherwise nonstatutory claim statutory.” (quotations and alterations omitted)). Moreover, the abstract idea is not applied with, or by use of, a particular machine. See MPEP § 2106.05(b). Indeed, the claimed method can be performed without a boiling water reactor (and its components)—under the broadest reasonable interpretation of the claims, the claimed acoustic network model can be developed by “identifying” theoretical “main steam lines” (e.g., main steam lines specified in a design of a boiling water reactor) and “specifying” volumes for a theoretical “pressure equalizer” and “reactor pressure vessel.” Consequently, we conclude that the recited “main steam lines,” “a pressure equalizer,” and “a reactor pressure vessel” do not integrate the abstract idea into a practical application. See Versata Dev. Grp. v. SAP Am. Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (explaining that in order for a machine to add significantly more, it must “play a significant part Appeal 2019-000204 Application 13/834,768 11 in permitting the claimed method to be performed”); see also Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1262 (Fed. Cir. 2016) (“In this case, the claims are directed not to an improvement in cellular telephones but simply to the use of cellular telephones as tools in the aid of a process focused on an abstract idea. That is not enough to constitute patentable subject matter.”); cf. Thales Visionix Inc. v. United States, 850 F.3d 1343, 1348–49 (Fed. Cir. 2017) (holding claims that include a mathematical algorithm to be patent eligible because “the claims are directed to systems and methods that use inertial sensors in a non-conventional manner”). Appellant argues that claim 1 “improves the technical field of steam hammer analysis and the dynamic acoustic load resulting therefrom,” and thus, recites subject matter that improves a technology or technical field. Appeal Br. 6–7 (citing McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089 (Fed. Cir. 2016)). In support, Appellant explains that “[c]onventional methodology utilizes acoustic circuit equations to analyze acoustic waves . . . . The methodology of the invention is based on a modification of these acoustic circuit equations” by adding Equation 4 and implementing the method in computer code. Id. at 7. We are not persuaded by this argument that the claims integrate the abstract idea into a practical application. Appellant contends that the claims recite an improved mathematical calculation, but this does not confer patent eligibility. RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1328 (Fed. Cir. 2017) (finding the addition of a mathematical equation did not integrate the abstract idea into a practical application); see Flook, 437 U.S. at 594 Appeal 2019-000204 Application 13/834,768 12 (The “process is unpatentable under § 101, not because it contains a mathematical algorithm as one component, but because once that algorithm is assumed to be within the prior art, the application, considered as a whole, contains no patentable invention.”). Moreover, we are not persuaded by Appellant’s reliance on FairWarning and McRO. See Appeal Br. 6–7. First, Appellant appears to argue that, because its claim improves an existing process rather than using a computer to execute a known method, the claim is patent eligible under FairWarning. Id. Appellant’s reliance on FairWarning is misplaced. In that case, the Federal Circuit found the claims to be ineligible because they added a computer to an existing process. 839 F.3d at 1094–95. But the converse is not necessarily true. Rather, a claim may be ineligible even if it adds a computer to a new process. Second, we perceive no reasonable analogy to McRO. The claims in McRO “were directed to the creation of something physical—namely, the display of ‘lip synchronization and facial expressions’ of animated characters on screens for viewing by human eyes.” SAP Am., 898 F.3d at 1167 (quoting McRO, 837 F.3d at 1313). But, here, the focus of the claims is not any improved physical component, “but the improved mathematical analysis.” Id. at 1168. Finally, Appellant notes that claim 1 is not currently subject to an anticipation or obviousness rejection, showing that the recited method “was not routine nor conventional at the time of the invention.” Appeal Br. 7–8. However, “[t]he ‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter.” Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d Appeal 2019-000204 Application 13/834,768 13 1307, 1315 (Fed. Cir. 2016) (emphasis omitted) (quoting Diehr, 450 U.S. at 188–89). Accordingly, even in combination with all the other recited elements, the addition of “computer-based mathematical algorithm” and the recited components of a boiling water reactor do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. For these reasons, we determine that claim 1 does not integrate the recited abstract idea into a practical application. Inventive Concept Because we agree with the Examiner that claim 1 is “directed to” an abstract idea, we consider whether an additional element (or combination of elements) adds a limitation that is not well-understood, routine, conventional (“WURC”) activity in the field or whether the additional elements simply append WURC activities previously known to the industry, specified at a high level of generality, to the judicial exception. Revised Guidance, 84 Fed. Reg. at 56. The Examiner’s finding that an additional element (or combination of elements) is WURC activity must be supported with a factual determination. Id. at n.36 (citing MPEP § 2106.05(d), as modified by the Berkheimer Memorandum6). Whether additional elements are WURC activity is a question of fact. See Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018) (“Whether something is well-understood, routine, and conventional to a skilled artisan . . . is a factual determination.”). 6 Robert W. Bahr, Changes in Examination Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.) (2018) (hereinafter “Berkheimer Memorandum”). Appeal 2019-000204 Application 13/834,768 14 On the record before us, Appellant has not shown that the claims on appeal add a specific limitation beyond the judicial exception that is not “well-understood, routine, and conventional” in the field, whether the limitations are considered individually or as an ordered combination (see MPEP § 2106.05(d)). The Examiner found that “[t]he only computer components recited are generic computer components.” Final Act. 4. Although Appellant argues that the claim as a whole was “not routine nor conventional at the time of the invention” (Appeal Br. 7), Appellant neither responds to the Examiner’s finding nor points to a particular claimed element that does not qualify as WURC. See id. In fact, Appellant’s Specification demonstrates the WURC nature of the “computer-based” algorithm because it indicates it may be implemented with generic devices. Spec. ¶ 21. Moreover, the Specification does not describe the boiling water reactor or its components in any detail, indicating that they are conventional technology. See, e.g., Spec. ¶¶ 5, 21, Fig. 1. For these reasons, we conclude that claim 1, considered as a whole, does not include an inventive concept. Therefore, we sustain the Examiner’s § 101 rejection of independent claim 1. The dependent claims (i.e., claims 5–7) fall with their respective independent claim. See Appeal Br. 8 (dependent claims not separately argued); Reply Br. 3 (same). CONCLUSIONS In summary: Appeal 2019-000204 Application 13/834,768 15 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 5–7 101 Eligibility 1, 5–7 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED Copy with citationCopy as parenthetical citation