May Patents Ltd.

Patent Trials and Appeals Board

Jun 30, 2020

2019002059 (P.T.A.B. Jun. 30, 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.
15/716,881 09/27/2017 Yehuda BINDER BINDER-014-US4 7883
131926 7590 06/30/2020
May Patents Ltd. c/o Dorit Shem-Tov
P.O.B 7230
Ramat-Gan, 5217102
ISRAEL
EXAMINER
KHAN, HASSAN ABDUR-RAHMAN
ART UNIT PAPER NUMBER
2456
MAIL DATE DELIVERY MODE
06/30/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte YEHUDA BINDER and BENJAMIN MAYTAL
____________

Appeal 2019-002059
Application 15/716,881
Technology Center 2400
____________

Before JOHN A. JEFFERY, JUSTIN BUSCH, and
LINZY T. McCARTNEY, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Under 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject claims 1, 33–36, and 41. 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. Appellant identifies the real party in interest as May Patents
Ltd. Appeal Br. 1.
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STATEMENT OF THE CASE
Appellant’s invention is a device used with a single wire pair that
carries Direct Current (DC) power and digital data concurrently, where the
device includes a splitter with three ports such that (1) a digital data signal is
passed only between the first and second ports, and (2) a DC power signal is
passed only between the first and third ports. See Spec. 157–58. The
splitter’s first port is also connected to a connector for connecting to a wire
pair that carries DC power and digital data concurrently. See id. Claim 1 is
illustrative:
1. A device for use with a single wire pair, the wire pair
concurrently carrying Direct Current (DC) power and bi-directional digital
data signals that is carried over a frequency band above and distinct from the
DC power using Frequency Division Multiplexing (FDM), the device
comprising:
a connector for connecting to the wire pair;
a splitter having first, second and third ports,
wherein the digital data signal is passed only between the
first and second ports, and the DC power signal is passed only
between the first and third ports, and wherein the first port
is connected to the connector;
a software and a processor for executing the
software;
a transceiver coupled between the processor and the
second port for transmitting digital data to, and receiving
digital data from, the wire pair via the connector;
a sensor for sensing a first phenomenon, the sensor
having an output coupled for transmitting to the processor a
value responsive to the first phenomenon; and
a single enclosure mountable for housing the
connector, the splitter, the processor, and the transceiver,
wherein the transceiver and the processor are coupled to the third port for
being powered from the DC power via the connector, and wherein the device
is operative to transmit the value to the wire pair via the connector.
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RELATED APPEALS
On page 2 of the Appeal Brief, Appellant informs us of two related
appeals in copending applications 13/733,634 and 15/361,434. Those
appeals have been decided. See Ex parte Binder, Appeal 2018-007694
(PTAB Mar. 2, 2020), reh’g denied (PTAB May 18, 2020); Ex parte Binder,
Appeal 2019-000272 (PTAB June 10, 2020).
Although not indicated in the Appeal Brief or Reply Brief, this appeal
is also related to two other appeals in copending applications 15/716,881 and
15/657,163, the latter of which has been decided. See Ex parte Binder,
Appeal 2019-002056 (PTAB May 4, 2020).

THE REJECTIONS2
The Examiner rejected claims 1, 33–36, and 41 under 35 U.S.C. § 101
as ineligible. Non-Final Act. 5–6.3
The Examiner rejected claims 1, 33, 36, and 41 under 35 U.S.C. § 103
as unpatentable over Shostak (US 2010/0207754 Al; published Aug. 19,
2010) and Norris (US 2007/0198144 Al; published Aug. 23, 2007). Non-
Final Act. 7–10.

2 Because the Examiner withdrew a rejection under § 112, first paragraph
(Ans. 3), that rejection is not before us.
3 Throughout this opinion, we refer to (1) the Non-Final Rejection mailed
August 30, 2018 (“Non-Final Act.”); (2) the Appeal Brief filed December
16, 2018 (“Appeal Br.”); (3) the Examiner’s Answer mailed January 8, 2019
(“Ans.”); and (4) the Reply Brief filed January 13, 2019 (“Reply Br.”).
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The Examiner rejected claims 34 and 35 under 35 U.S.C. § 103 as
unpatentable over Shostak, Norris, and Kim (US 2005/0273505 Al;
published Dec. 8, 2005). Non-Final Act. 11–12.

THE INELIGIBILITY REJECTION
The Examiner determines that the claimed invention is directed to an
abstract idea, namely receiving and transmitting sensor data, which is said to
be similar to abstract concepts identified by the courts, such as collecting
and analyzing information, and displaying results of that analysis. See Non-
Final Act. 5; Ans. 4. The Examiner adds that the claims do not include
elements that add significantly more than the abstract idea, but merely recite
elements that are well-understood, routine, and conventional. See Non-Final
Act. 12; Ans. 4. Specifically, the Examiner identifies six additional
elements that are said to amount to routine and conventional functionalities.
Non-Final Act. 5–6.
Appellant argues that not only does the Examiner mischaracterize the
claims, the claimed invention does not analyze information, let alone display
results of such an analysis as the Examiner determines. See Appeal Br. 12.
According to Appellant, the claimed invention not only differs from the
claims in Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed.
Cir. 2016), the claimed invention satisfies the machine-or-transformation
test, and is a technological improvement including, among other things, an
unconventional electrical powering scheme. Appeal Br. 12–14; Reply Br. 2.
Appellant adds that the Examiner fails to show that the recited
elements, such as (1) carrying power and data over the same wire pair, and
(2) using that pair to (a) power a transceiver and sensor, and (b) transmit
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sensor data, are well-understood, routine, and conventional. Appeal Br. 14–
15. According to Appellant, these elements add significantly more to the
abstract idea. Id.

ISSUE
Under § 101, has the Examiner erred in rejecting claims 1–10, 12–19,
and 21–24 as directed to ineligible subject matter? This issue turns on
whether the claims are directed to an abstract idea and, if so, whether the
recited elements—considered individually and as an ordered combination—
transform the nature of the claims into a patent-eligible application of that
abstract idea.

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.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. See, 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. 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.” 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
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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, 67 (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 187 n.7 (quoting Corning v. Burden, 56 U.S.
(15 How.) 252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S.
at 67 (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 176; 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.”). That
said, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
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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. (alterations in original) (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 United States Patent and Trademark Office
(“USPTO”) published revised guidance on the application of § 101. See
USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Guidance”).4 Under that guidance, we first look to
whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see MANUAL OF PATENT EXAMINING

4 See also October 2019 Update: Subject Matter Eligibility,
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df.
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PROCEDURE (MPEP) §§ 2106.05(a)–(c), (e)–(h) (9th ed. Rev.
08.2017, Jan. 2018)).
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, and conventional in the field
(see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Guidance, 84 Fed. Reg. at 56.

ANALYSIS
Claims 1, 33–36, and 41: Alice/Mayo Step One
Representative independent claim 1 recites:
A device for use with a single wire pair, the wire pair
concurrently carrying Direct Current (DC) power and bi-
directional digital data signals that is carried over a frequency
band above and distinct from the DC power using Frequency
Division Multiplexing (FDM), the device comprising:

a connector for connecting to the wire pair;
a splitter having first, second and third ports, wherein the
digital data signal is passed only between the first and second
ports, and the DC power signal is passed only between the first
and third ports, and wherein the first port is connected to the
connector;

a software and a processor for executing the software;

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a transceiver coupled between the processor and the
second port for transmitting digital data to, and receiving digital
data from, the wire pair via the connector;

a sensor for sensing a first phenomenon, the sensor
having an output coupled for transmitting to the processor a
value responsive to the first phenomenon; and

a single enclosure mountable for housing the connector,
the splitter, the processor, and the transceiver,

wherein the transceiver and the processor are coupled to
the third port for being powered from the DC power via the
connector, and wherein the device is operative to transmit the
value to the wire pair via the connector.

A key aspect of the claimed invention uses a splitter with three ports
such that (1) a digital data signal is passed only between the first and second
ports, and (2) a DC power signal is passed only between the first and third
ports. See Spec. 157–58. The splitter’s first port is also connected to a
connector for connecting to a wire pair that carries DC power and digital
data concurrently. See id. The Power/Data Splitter 76, with its ports 761a,
762a, and 763a, is shown in Appellant’s Figure 7 reproduced below.

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Appellant’s Figure 7 showing Power/Data Splitter and Ports

As shown above, the splitter’s port 761a, labeled “PD,” is connected
to connector 77, and ports 762a (port “P” (power only)) and 763a (port “D”
(data only)) are connected to power supply 73 and modem 72, respectively.
See Spec. 154, 157. With this arrangement, electric power and digital data
carried concurrently on cable 79 are received and split into independent and
distinct signals, such that (1) electric power is transferred to the power
supply via port “P” and connection 75, and (2) digital data is transmitted to
and from the modem via connection 74. See Spec. 157; Fig. 7.
Turning to claim 1, we first note that the claim recites a device and,
therefore, falls within the machine category of § 101. But despite falling
within this statutory category, we must still determine whether the claim is
directed to a judicial exception, namely an abstract idea. See Alice, 573 U.S.
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at 217. To this end, we must determine whether the claim (1) recites a
judicial exception, and (2) fails to integrate the exception into a practical
application. See Guidance, 84 Fed. Reg. at 52–55. If both elements are
satisfied, the claim is directed to a judicial exception under the first step of
the Alice/Mayo test. See id.
In the rejection, the Examiner determines that claim 1 is directed to an
abstract idea, namely receiving and transmitting sensor data, which is said to
be similar to abstract concepts identified by the courts, such as collecting
and analyzing information, and displaying results of that analysis. See Non-
Final Act. 5; Ans. 4.
To determine whether the Examiner’s ineligibility rejection is
erroneous, we first determine whether a claim recites an abstract idea by (1)
identifying the claim’s specific limitations that recite an abstract idea, and
(2) determining whether the identified limitations fall within certain subject
matter groupings, namely, (a) mathematical concepts5; (b) certain methods
of organizing human activity6; or (c) mental processes.7

5 Mathematical concepts include mathematical relationships, mathematical
formulas or equations, and mathematical calculations. See Guidance, 84
Fed. Reg. at 52.
6 Certain methods of organizing human activity include fundamental
economic principles or practices (including hedging, insurance, mitigating
risk); commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions). See Guidance, 84 Fed. Reg. at 52.
7 Mental processes are concepts performed in the human mind including an
observation, evaluation, judgment, or opinion. See Guidance, 84 Fed. Reg.
at 52.
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As noted previously, claim 1 recites a device used with a wire pair
that carries DC power and digital data signals concurrently, where the device
includes a connector and splitter that are arranged with respect to other
device components in a particular way to identify, separate, and route DC
power and digital data signals independently to different destinations.
Notably, the claim recites, among other things, (1) a transceiver coupled
between a processor and the splitter’s second port to transmit digital data to,
and receive data from, a wire pair via the connector; (2) the transceiver and
processor both coupled to the splitter’s third port for being powered from
DC power via the connector; and (3) the device is operative to transmit a
sensor value to the wire pair via the connector, where the connector is
connected to the splitter’s first port. These components and their particular
arrangement in claim 1 do not fall within any of the subject matter groupings
under the USPTO’s Guidelines, namely (1) mathematical concepts;
(2) certain methods of organizing human activity; or (3) mental processes
and, therefore, do not recite an abstract idea. See Guidance, 84 Fed. Reg. at
52–54. For that reason alone, the Examiner’s ineligibility rejection is
erroneous. We, therefore, need not address whether any additional elements
(1) integrate the purported abstract idea into a practical application, or (2)
add significantly more to the abstract idea under step 2 of the Alice/Mayo
framework.
Accordingly, we are persuaded that the Examiner erred in rejecting
claims 1, 33–36, and 41 as ineligible.

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THE OBVIOUSNESS REJECTION OVER SHOSTAK AND NORRIS
Regarding independent claim 1, the Examiner finds that Shostak
discloses a device for use with a single wire pair that concurrently carries
DC power and bi-directional digital data, where the device comprises,
among other things, the recited splitter and port connections in Shostak’s
paragraph 615 and Figure 44. Non-Final Act. 7–8. Although the Examiner
acknowledges that Shostak lacks the recited single enclosure, the Examiner
cites Norris as teaching this feature in concluding that the claim would have
been obvious. Final Act. 9.
Appellant argues, among other things, that not only are the cited
references improperly combined, the Examiner’s equating the recited splitter
to Shostak’s Figure 44 is misplaced because it shows only two circulator
ports and lacks the recited digital data and power signals. Appeal Br. 16–19;
Reply Br. 2–4.

ISSUE
Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Shostak and Norris collectively would have taught or suggested a device
for use with a wire pair concurrently carrying DC power and bi-directional
digital data signals, where the device includes:
(1) a splitter with first, second and third ports, where (a) a digital data
signal is passed only between the first and second ports; (b) a DC power
signal is passed only between the first and third ports; and (c) the first port is
connected to the connector;
(2) a transceiver coupled between a processor and the second port;
and
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(3) the transceiver and processor coupled to the third port?

ANALYSIS
We begin by noting an inconsistency in the claim language and the
corresponding description in the Specification. As noted above, a key aspect
of the claimed invention uses a splitter with three ports such that (1) a digital
data signal is passed only between the first and second ports, and (2) a DC
power signal is passed only between the first and third ports. See Spec. 157–
58. The splitter’s first port is also connected to a connector for connecting to
a wire pair that carries DC power and digital data concurrently. See id. The
Power/Data Splitter 76, with its ports 761a, 762a, and 763a, is shown in
Appellant’s Figure 7 reproduced below.

Appellant’s Figure 7 showing Power/Data Splitter and Ports
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As shown above, the splitter’s port 761a, labeled “PD,” is connected
to connector 77, and ports 762a (port “P” (power only)) and 763a (port “D”
(data only)) are connected to power supply 73 and modem 72, respectively.
See Spec. 154, 157. With this arrangement, electric power and digital data
carried concurrently on cable 79 are received and split into independent and
distinct signals, such that (1) electric power is transferred to the power
supply via port “P” and connection 75, and (2) digital data is transmitted to
and from the modem via connection 74. See Spec. 157; Fig. 7.
On page 3 of the Appeal Brief, Appellant maps the following
elements in Figure 7 to the recited splitter ports:
(1) the first port to item 761a;
(2) the second port to item 762a; and
(3) the third port to item 763b.
According to claim 1, (1) a digital data signal is passed only between
the first and second ports, and (2) a DC power signal is passed only between
the first and third ports.
But as shown in Appellant’s Figure 7 above, item 762a, which
Appellant maps to the recited second port (Appeal Br. 3), is labeled “P,” and
according to the Specification’s page 157, is supplied with a power signal.
Claim 1, however, recites that a digital data signal—not a DC power
signal—is passed between the second port and the first port.
Appellant’s Figure 7 also shows item 763a, which Appellant maps to
the recited third port (Appeal Br. 3), is labeled “D,” and according to the
Specification’s page 157, is supplied with a data signal. Claim 1, however,
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recites that a DC power signal—not a digital data signal—is passed between
the third port and the first port.
Despite this inconsistency, the claim is nonetheless clear that the
second and third ports are dedicated to DC power and digital data signals,
respectively, such that each port passes only its respective dedicated signal
(i.e., data or power) to and from the first port. This independent and distinct
transmission of data and power signals from different ports reasonably
comports with the functionality shown in Figure 7 and its associated
description, notwithstanding Appellant inartfully transposing the recited
second and third ports with their associated reference numerals 762a and
763a in Figure 7 (see Appeal Br. 3)—an error that we deem harmless on this
record.
Turning to the rejection, the Examiner finds that Shostak’s Figure 44
and paragraph 615 teach the recited splitter and respective DC power and
digital data connections between the splitter’s three ports. Non-Final Act. 8.
On page 6 of the Answer, the Examiner adds Shostak’s Figure 43 and
paragraphs 610 to 614 to the citations in the rejection.
These findings are problematic. According to Shostak’s paragraph
114, Figure 44 is a block diagram of the components of the circuit shown in
Figure 43 that, according to paragraph 113, is a schematic of a circuit used
in the boosting arrangement of Figure 42. Shostak’s Figure 42
schematically illustrates an arrangement for boosting signals to and from a
surface acoustic wave (SAW) device. Shostak ¶ 112.
As explained in Shostak’s paragraph 615, Figure 44 shows the circuit
of Figure 43 that includes electronic components arranged to form first and
second signal splitters 225 and 226, where (1) splitter 225’s first port, Port
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A, is adjacent antenna 223, and (2) splitter 226’s second port, Port B, is
adjacent SAW device 221. Shostak’s Figure 44 showing the two splitters
and associated antenna and SAW ports is reproduced below.

Shostak’s Figure 44 showing splitters and associated ports

The clear import of this functionality is that the device shown in
Figure 44, with its two splitters and associated components in Figures 42
and 43, amplifies signals from one port to the other. See Shostak ¶¶ 610–
615.
Given this arrangement that is used for an entirely different purpose
than the claimed invention, we fail to see—nor has the Examiner shown—
how this relied-upon functionality teaches or suggests the recited splitter and
respective DC power and digital data connections between the splitter’s
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three ports, let alone the connections of the recited transceiver and processor
with respect to the splitter’s second and third ports. Accord Appeal Br. 19.8
The Examiner not only fails to map each recited port to respective structural
elements in Shostak, but also fails to show the exclusive DC power and
digital data signals and their respective port relationships, such that each port
passes only its respective dedicated signal (i.e., data or power) to and from
the first port as claimed. We will not speculate in that regard here in the first
instance on appeal.
Therefore, we are persuaded that the Examiner erred in rejecting
(1) independent claim 1, and (2) dependent claims 33, 36, and 41 for similar
reasons. Because this issue is dispositive regarding our reversing the
Examiner’s rejection of these claims, we need not address Appellant’s other
associated arguments.
Nevertheless, we leave to the Examiner to reconsider the patentability
of the claims over the prior art reference, TP-Link® User Guide, TL-
POE10R, PoE Splitter (2010), hereby made of record, in combination with
other prior art—including that cited in the related cases summarized in the
“RELATED APPEALS” section of this decision, as well as other applicable
prior art. As a Board of review—not initial examination—we need not
address that patentability question in the first instance here, but rather leave

8 Although Appellant’s arguments in the paragraph bridging pages 18 and 19
of the Appeal Brief regarding improperly combining distinct embodiments
are germane to anticipation—not obviousness—we nonetheless deem this
error harmless because Appellant’s additional arguments regarding the
rejection’s deficiencies with respect to the splitter limitation (Appeal Br. 19)
are applicable to the obviousness rejection.
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this question to the Examiner to consider after this opinion in light of this
new reference.

THE OTHER OBVIOUSNESS REJECTION
Because the Examiner has not shown that Kim cures the foregoing
deficiencies regarding the obviousness rejection of independent claim 1, we
will not sustain the obviousness rejection of dependent claims 34 and 35
(Non-Final Act. 11–12) for similar reasons.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 33–36,
41
101 Eligibility 1, 33–36,
41
1, 33, 36,
41
103 Shostak, Norris 1, 33, 36,
41
34, 35 103 Shostak, Norris, Kim 34, 35
Overall
Outcome
1, 33–36,
41

REVERSED