Michael Nelson

Patent Trials and Appeals Board

Jun 17, 2020

15730630 - (D) (P.T.A.B. Jun. 17, 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.
15/730,630 10/11/2017 Michael Dale Nelson 3422
151284 7590 06/17/2020
Michael D Nelson
854 Saint John Court
Pleasanton, CA 94566
EXAMINER
RAVETTI, DANTE
ART UNIT PAPER NUMBER
3685
MAIL DATE DELIVERY MODE
06/17/2020 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 MICHAEL DALE NELSON
____________

Appeal 2019-005924
Application 15/730,630
Technology Center 3600
____________

Before BIBHU R. MOHANTY, NINA L. MEDLOCK, and
TARA L. HUTCHINGS, Administrative Patent Judges.

MOHANTY, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1–6 and 9–20. We have jurisdiction
under 35 U.S.C. § 6(b).

SUMMARY OF THE DECISION
We AFFIRM.

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 the Inventor.
(Appeal Br. 1).
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CLAIMED SUBJECT MATTER
The Appellant’s claimed invention relates to filtering and compressing
polling data based on statistical methodology using past polling errors
(Spec. 1, lines 28, 29). Claim 9, reproduced below with the italics added, is
representative of the subject matter on appeal.

9. A method of filtering and compressing polling data that
improves computer performance in processing the compressed polling
data comprising:
receiving past polling data applicable to the Republican and
Democrat candidates in at least one past election period from multiple
geographic regions;
receiving past voting data applicable to said past polling data;
generating polling error data from said past polling data and said past
voting data;
generating rounded occurrence event data from the said polling
error data and arranged into standard deviation intervals and rounded
to the nearest whole integer or half integer; and said rounded
occurrence event data has a standard deviation interval value
associated with each geographic region;
generating occurrence frequency data from said rounded
occurrence event data, wherein said standard deviation interval value
is selected from one of the following:
(i) 0 or 0 and one or more of the following values: -1
and+ 1, when whole integer rounding is used, and
(ii) 0 or 0 and one or more of the following: values: -.5,
+.5, -1 and+ 1, when half integer rounding is used, and
wherein said occurrence frequency data maintain a
relationship to the geographic regions applicable to the
Republican and Democrat candidates and to each past
polling period;
generating electronic compression filter data from the
occurrence frequency data by combining the geographic regions for
the Republican and Democrat candidates for at least one past polling
period, wherein said electronic compression filter data are
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related to a limited number of geographic regions and comprising a
reduction of at least 30 to 90 percent of the total number of
geographic regions; and
applying said electronic compression filter data by performing
at least one additional step selected from the group consisting of:
(a) generating a report identifying said limited number of
geographic regions included within the compression filter data;
and
(b) projecting a winner in an upcoming election by
receiving polling data applicable to an upcoming election;
processing said polling data applicable to said upcoming
election as reduced by said limited number of geographic
regions; and displaying a projected winner of said upcoming
election.

THE REJECTIONS
The following rejections are before us for review:
1. Claims 1–6 and 9–20 are rejected under 35 U.S.C. § 101 as
being directed to patent-ineligible subject matter.
2. Claims 1–6 and 9–20 are rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
3. Claims 1–6 and 15 are rejected under 35 U.S.C. § 112, second
paragraph, as indefinite for failing to particularly point out and distinctly
claim the subject matter that the inventor regards as the invention.

FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence.2

2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
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ANALYSIS
Rejection under 35 U.S.C. § 101
The Appellant argues that the rejection of claim 9 is improper because
the claim is not directed to an abstract idea (Appeal Br. 13–36; Reply Br. 4).
The Appellant argues further that the claim is “significantly more” than the
alleged abstract idea (Appeal Br. 37–46).
In contrast, the Examiner has determined that the rejection of record is
proper (Final Act. 8–19; Ans. 5–10).
We agree with the Examiner. 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. 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 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);
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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, 192
(1981)); “tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 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 technological environment.”
Id. (internal citation omitted) (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.”).
The PTO published revised guidance on the application of § 101 in
January 2019. 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Under the Guidance, we first look
to whether the claim recites:
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(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application, i.e., evaluate whether the claim
“appl[ies], rel[ies] on, or use[s] the judicial exception in a manner
that imposes a meaningful limit on the judicial exception, such
that the claim is more than a drafting effort designed to
monopolize the judicial exception.” (see Guidance, 84 Fed. Reg.
at 54; see also MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Guidance, 84 Fed. Reg. at 56.
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 (citation 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.
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The Specification states that the invention generally relates to filtering
and compressing polling data based on statistical methodology using past
polling errors (Spec. 1, lines 28, 29). Here, the Examiner has determined
that “Appellant’s limitations are directed to the abstract idea of processing
data using generic computing functions (e.g., receiving, processing, and
storing)” (Ans. 8). We substantially agree with the Examiner. We
determine that claim 9 sets forth the subject matter in italics above. The
claim recites: [1] “receiving past polling data”; [2] “receiving past voting
data”; [3] “generating polling error data”; [4] “generating rounded
occurrence event data”; [5] “generating occurrence frequency data”; [6]
“generating electronic compression filter data from the occurrence frequency
data”; [7] “applying said electronic compression filter data”; [8] “generating
a report identifying said limited number of geographic regions”;
[9] “projecting a winner in an upcoming election”; and [10] “displaying a
projected winner of said upcoming election,” which describe the concept of
filtering and compressing polling data to project a winner in an election,
which is a mathematical concept using mathematical relationships, formulas,
and calculations, i.e. a judicial exception. In Bilski v. Kappos, 560 U.S. 593,
599, Jun. 28, 2010 a mathematical formula for hedging was held to be an
abstract concept. In Parker v. Flook, 437 U.S. 584, 585, June 22, 1978, a
formula for computing an alarm limit was held to be a mathematical
algorithm or formula.
Having determined that claim 9 recites an abstract idea, we next
determine whether the claim recites additional elements that integrate the
judicial exception into a practical application. See Guidance, 84 Fed. Reg. at
54–55. The Revised Guidance references the MANUAL OF PATENT
EXAMINING PROCEDURE (“MPEP”) §§ 2106.05(a)–(c) and (e)–(h).
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Contrary to Appellant’s arguments (see, e.g., Appeal Br. 40–46), the
claims do not improve computer functionality, improve another field of
technology, utilize a particular machine, or effect a particular physical
transformation. Rather, we determine that nothing in the claims imposes a
meaningful limit on the judicial exception, such that the claims are more
than a drafting effort to monopolize the judicial exception.
For example, in claim 9 the steps of “receiving,” “generating,”
“applying,” “processing” and “displaying” are merely steps performed by a
generic computer that do not improve computer functionality. Appellant
argues that the claimed invention dramatic reduces geographic polling
regions, reduces error data in the files (thereby reducing the file size and
improving processing efficiency), and improves the selection, processing,
and/or transmission of polling data. Id. at 41; see also id. at 46 (contending
that the invention results in “a substantial reduction in the size of the
database based on actual tests with real data and not just a possibility”). But
the improvements identified by Appellant result from an improvement in a
process that is itself the abstract idea, not improvements to computer
functionality or other technology. Put simply, the recited functions do not
purport to improve “the functioning of the computer itself” but are merely
generic functions performed by a conventional processor to implement the
abstract idea. Likewise, these same functions listed above do not improve
the technology of the technical field and merely use generic computer
components and functions to perform the steps. Also, the recited method
functions above do not require a “particular machine” and can be utilized
with a general purpose computer, and the steps performed are purely
conventional. In this case the general purpose computer is merely an object
on which the method operates in a conventional manner. Further, the claim
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as a whole fails to effect any particular transformation of an article to a
different state. The recited functions fail to provide meaningful limitations
to limit the judicial exception and rather are mere instructions to apply the
method to a generic computer.
Considering the elements of the claim both individually and as “an
ordered combination” the functions performed by the computer system at
each step of the process are purely conventional. Each step of the claimed
method does no more than require a generic computer to perform a generic
computer function. Thus, the claimed elements have not been shown to
integrate the judicial exception into a practical application as set forth in the
Revised Guidance, which references the MANUAL OF PATENT EXAMINING
PROCEDURE (“MPEP”) §§ 2106.05(a)–(c) and (e)–(h).
Turning to the second step of the Alice and Mayo framework, we
determine that the claim does not contain an inventive concept sufficient to
“transform” the abstract nature of the claim into a patent-eligible application.
Considering the claim limitations, both individually and as an ordered
combination, the claim fails to add subject matter beyond the judicial
exception that is not well-understood, routine, and conventional in the field.
Rather the claim uses well-understood, routine, and conventional activities
previously known in the art and they are recited at a high level of generality.
The Specification at page 16 for example describes using conventional
computer components such as a mainframe, desktop, laptop, and smartphone
in a conventional manner. Here, the generic computer components which
are used to implement the claimed method are well understood, routine, or
conventional in the field. The Appellant has not demonstrated that the logic
circuits, computer, and database described in the Specification at pages 4,
16, and 19 for instance are not general purpose computer components known
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to perform similar functions in a well-understood manner. Here, the claim
has not been shown to be “significantly more” than the abstract idea.
For these above reasons the rejection of claim 9 is sustained. The
remaining claims are directed to similar subject matter for which the same
arguments have been presented and the rejection of these claims is sustained
as well.

Rejection under 35 U.S.C. § 112 (first paragraph)
The Examiner has determined in claim 1 that the recitation of “[a]n
electronic compression filtering system that compresses polling data and
improves computer performance used in processing the compressed polling
data comprising” is not supported by the Specification (Final Act. 20).
In contrast, the Appellant argues that the Specification supports the
above cited claim limitation (Appeal Br. 46–48). The Appellant cites, in the
Appeal Brief at pages 41 and 42, various statements in the Specification as
providing written description support for this portion of the claim.
We agree with the Appellant. Initially, we note that the cited claim
limitation is in the preamble, and not a limitation to the claim. Regardless,
as noted in the Appeal Brief at page 41, the Specification at page 4, does
state that the “electronic filter improves the selection and computer
processing and/or transmission of polling data,” providing support for the
preamble. For these reasons, this rejection of claim 1 is not sustained. The
rejection of the remaining claims in this rejection is not sustained for these
same reasons.

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Rejection under 35 U.S.C. § 112 (second paragraph)
The Examiner has determined that claims 1–6 are improper in
claiming multiple statutory classes (Ans. 11, 12).
In contrast, the Appellant argues that this rejection is improper
(Appeal Br. 48–50).
We agree with the Appellant. Here the claim 1 is drawn to a system
and the components merely include the function they are capable of
performing. Accordingly, this rejection is not sustained.
The Examiner has also determined that claims 1–6 are improper for
failing to provide sufficient structure for “a third logic means for generating
occurrence frequency data from the rounded occurrence event data; wherein
said standard deviation interval value is selected from one of the
following…” (Ans. 12, 13).
The Appellant has failed to provide arguments in regard to this
specific rejection and this rejection is summarily sustained.
The Examiner has determined that claim 15 is unclear because the
term “subjecting” is unclear (Ans. 15).
In contrast, the Appellant has argued that this rejection is improper
(Appeal Br. 52, 53).
We agree with the Appellant. Here, the term “subjecting” is not
unclear in the scope of the claim and one of ordinary skill in the art would
understand what is being claimed by the term. Accordingly, this rejection is
not sustained.
CONCLUSIONS OF LAW
We conclude that Appellant has not shown that the Examiner erred in
rejecting claims 1–6 and 9–20 under 35 U.S.C. § 101 as being directed to
patent-ineligible subject matter.
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We conclude that Appellant has shown that the Examiner erred in
rejecting claims 1–6 and 9–20 under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement.
We conclude that Appellant has not shown that the Examiner erred in
rejecting claims 1–6 under 35 U.S.C. § 112, second paragraph.
We conclude that Appellant has shown that the Examiner erred in
rejecting claim 15 under 35 U.S.C. § 112, second paragraph.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–6, 9–20 101 Eligibility 1–6, 9–20
1–6, 9–20 112, first
paragraph
Written
Description
1–6, 9–20
1–6, 15 112,
second
paragraph
Indefiniteness 1–6 15
Overall
Outcome
1–6, 9–20

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED