Paul J. Hays

Patent Trials and Appeals Board

Sep 27, 2019

14241949 - (D) (P.T.A.B. Sep. 27, 2019)

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.
14/241,949 02/28/2014 Paul J Hays 35010/373US 9902
32827 7590 09/27/2019
THE OLLILA LAW GROUP LLC
2569 Park Lane, Suite 202
Lafayette, CO 80026
EXAMINER
SIMMONS, JENNIFER E
ART UNIT PAPER NUMBER
2854
NOTIFICATION DATE DELIVERY MODE
09/27/2019 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):
patents@olgip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte PAUL J. HAYS
____________________

Appeal 2017-011712
Application 14/241,949
Technology Center 2800
____________________

Before N. WHITNEY WILSON, JEFFREY R. SNAY, and
MICHAEL G. MCMANUS, Administrative Patent Judges.

WILSON, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
November 2, 2016 decision finally rejecting claims 1–20 (“Final Act.”). We
have jurisdiction over the appeal 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 Micron Motion, Inc. as the real party
in interest (Appeal Br. 5).
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CLAIMED SUBJECT MATTER
Appellant’s disclosure relates to a method of a vibratory flowmeter for
determining an average flow rate of a pulsating flow (Abstract). The
claimed vibratory flowmeter includes a flowmeter assembly including two
pickoff sensors and configured to generate at least two vibrational signals,
and meter electronics configured to receive the at least two vibrational
signals, generate a flow rate measurement signal, and then generate a period
average flow rate (id.). The meter electronics generate the period average
flow rate by dividing the flow rate measurement signal into a series of time
periods, with each time period including a single flow peak that is
substantially centered in the time period, totalize flow rate measurements of
each time period to generate a period sum, and divide the period sum by a
time period length to generate a period average flow rate (id.). The meter
electronics output a sequence of period average flow rates as an average
flow rate signal (id.). In addition to the claims to the vibratory flow meter,
there are also claims to a method for determining an average flow rate of a
pulsating flow. Details of the claimed invention are set forth in independent
claims 1 and 11, which are reproduced below from the Claims Appendix to
the Appeal Brief (emphasis added):
1. A vibratory flowmeter (5) for determining an average
flow rate of a pulsating flow, the vibratory flowmeter (5)
comprising:
a flowmeter assembly (10) including at least two pickoff
sensors ( l70L, l70R) and configured to generate at least two
vibrational signals; and
meter electronics (20) configured to receive the at least
two vibrational signals and generate a flow rate measurement
signal, divide the flow rate measurement signal into a series of
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time periods, with each time period including a single flow
peak that is substantially centered in the time period, totalize
flow rate measurements of each time period to generate a period
sum, and divide the period sum by a time period length to
generate a period average flow rate, wherein the meter
electronics (20) outputs a sequence of period average flow rates
as an average flow rate signal.

11. A method for determining an average flow rate of a
pulsating flow, the method comprising:
receiving two or more vibrational response signals from
two or more pickoff sensors of a vibratory flowmeter and
generating a flow rate measurement signal;
dividing the flow rate measurement signal into a series of
time periods, with each time period including a single flow
peak that is substantially centered in the time period;
totalizing flow rate measurements of each time period to
generate a period sum; and
dividing the period sum by a time period length to
generate a period average flow rate, wherein a sequence of
period average flow rates is outputted as an average flow rate
signal.

REJECTION
I. Claims 1–20 are rejected under 35 U.S.C. § 101 on the grounds
that the claimed invention is directed to a judicial exception, without
significantly more.
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II. Claims 1, 2, 4–12, and 14–20 are rejected under 35 U.S.C.
§103(a) as unpatentable over Bose2 in view of Schäefer.3
III. Claims 3 and 13 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bose in view of Schäefer, and further in view of Smith.4

DISCUSSION
Rejection I - Rejection under §101
Legal background. 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 interpreted § 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, the
Supreme Court’s two-step framework described in Mayo and Alice guides
our analysis. 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, 130 S. Ct. 3218 (2010) (“Claims 1 and 4 in

2 Bose et al., US 5,734,112, issued March 31, 1998.
3 Schäefer, DE 19653184 A1, published July 2, 1998. Because Schäefer is
in German, both Appellant and the Examiner rely on the English language
translation of record.
4 Smith, US 4,187,721, issued February 12, 1980.
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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, 130 S. Ct. 3218
(2010)); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95
(1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69
(1972)). Concepts determined to be patent eligible include physical and
chemical processes, such as “molding rubber products” (Diamond v. Diehr,
450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth,
vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning v.
Burden, 56 U.S. 252, 267–68 (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. (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, the analysis moves to the
second step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The PTO has published revised guidance on the application of § 101.
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:
(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 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
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(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.
We address claims 1–10 (which recite a vibratory flowmeter) and
claims 11–20 (which recite a method for determining an average flow rate of
a pulsating flow) separately. We will address individual claims as
necessary.
Claims 1–10
Guidance Step 1
There is no dispute that claims 1–10 fall within a statutory category,
as these claims each recite a machine.
Guidance Step 2A, Prong 1
Under Step 2A of the Guidance, we first consider whether the claims
recite a judicial exception. Claim 1 recites a number of steps involving
mathematical manipulation of data, for example (1) “divide the flow rate
measurement signal into a series of time periods, with each time period
including a single flow peak that is substantially centered in the time
period,” (2) “totalize flow rate measurements of each time period to generate
a period sum,” and (3) “divide the period sum by a time period length to
generate a period average flow rate.” Each of the foregoing steps recites a
mathematical relationship, which is sufficient to conclude that claim 1
recites mathematical concepts, which are identified in the Guidance as an
abstract idea.
Guidance Step 2A, Prong 2
Having determined that the claims recite a judicial exception, our
analysis under the Guidance turns to determining whether there are
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additional elements that integrate the exception into a practical application.
See MPEP § 2106.05(a)–(c), (e)–(h). The additional elements in claim 1 are:
(1) a flowmeter assembly, which includes (2) at least two pickoff sensors
configured to generate at least two vibrational signals, (3) meter electronics
configured to receive the two vibrational signals and generate a flow rate
measurement signal, and (4) the meter electronics outputs a sequence of
period average flow rates as an average flow rate signal.
Claim 1 represents a specific technical improvement to a technical
field (i.e. the measurement of a pulsating flow through a flow meter
assembly). These advantages, according to the Specification, include: (1) an
improved ability to handle pulsating flows, (2) more accurate and reliable
flow rates, (3) ability to generate average flow rates which update rapidly,
and (4) ability to generate an average flow rate that minimally lags to
instantaneous flow rate (Spec. 17–18). The additional elements (in addition
to the abstract ideas) recited in claim 1 set forth a structure which, in
combination with the abstract ideas, provides the aforementioned technical
improvements to the vibratory flow meter.
The analysis in is this situation is similar to the analysis in Diehr, 450
U.S. 175. In that case, the claim at issue related to a process for “molding
raw, uncured synthetic rubber into cured precision products” based on the
mold’s temperature. Diehr, 450 U.S. at 177. The claim recited a number of
different, manipulative steps to which the rubber was subjected, and the
process “lessen[ed] the possibility of ‘overcuring’ or ‘undercuring’”
common in the art. Id. at 187. Likewise, in this case, the flowing liquid is
measured and the data which is collected is used to generate additional
information about the sample in a manner which has technical advantages
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Thus, the claim includes additional elements that integrate the abstract
limitations into a practical application.
Accordingly, we conclude that claim 1, and the claims which depend
from it, describe patent eligible subject matter.
Claims 11–20
Guidance Step 1
There is no dispute that claims 11–20 fall within a statutory category,
as these claims each recite a process.
Guidance Step 2A, Prong 1
Under Step 2A of the Guidance, we first consider whether the claims
recite a judicial exception. Claim 11 recites a number of steps involving
mathematical manipulation of data, for example (1) “dividing the flow rate
measurement signal into a series of time periods, with each time period
including a single flow peak that is substantially centered in the time
period,” (2) “totalizing flow rate measurements of each time period to
generate a period sum,” and (3) “dividing the period sum by a time period
length to generate a period average flow rate.” Each of the foregoing steps
recites a mathematical relationship, which is sufficient to conclude that
claim 1 recites mathematical concepts, which are identified in the Guidance
as an abstract idea.
Guidance Step 2A, Prong 2
Having determined that the claims recite a judicial exception, our
analysis under the Guidance turns to determining whether there are
additional elements that integrate the exception into a practical application.
See MPEP § 2106.05(a)–(c), (e)–(h). The additional elements in claim 11
are: (1) receiving two or more vibrational response signals from two or more
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pickoff sensors of a vibratory flowmeter, (2) generating a flow rate
measurement signal, and (3) outputting a sequence of period average flow
rates as an average flow rate signal.
Claim 11 represents a specific technical improvement to a technical
field (i.e. the measurement of a pulsating flow). These improvements,
according to the Specification, include: (1) an improved ability to handle
pulsating flows, (2) more accurate and reliable flow rates, (3) ability to
generate average flow rates which update rapidly, and (4) ability to generate
an average flow rate that minimally lags to instantaneous flow rate (Spec.
17–18). The additional elements (in addition to the abstract ideas) recited in
claim 11 set forth a process which provides the aforementioned technical
improvements to the vibratory flow meter. Accordingly, we conclude that
claim 11 recites patent eligible subject matter.

Rejection II and III – Obviousness Rejections
Appellant argues claims 1 and 11 together (see, e.g. Appeal Br. 27).
Accordingly, we focus on the rejection of claim 1 over Bose in view of
Schäefer. The Examiner finds that Bose teaches a vibratory flowmeter for
determining an average flow rate of a pulsating flow, the vibratory
flowmeter comprising a flowmeter assembly including at least two pickoff
sensors and configured to generate at least two vibrational signals, and meter
electronics configured to receive the at least two vibrational signals and
generate a flow rate measurement signal (Final Act. 6, citing Bose, Figure 1,
5:45–49, 5:64–6:5, and 6:45–51). The Examiner further finds that Bose
does not teach that the meter electronics are configured as recited in the last
paragraph of claim 1 (Final Act. 6–7). The Examiner finds that Schäefer
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teaches these elements (Final Act. 7), and determines that it would have
been obvious to have combined Bose’s vibratory flowmeter with Schäefer’s
calculation method because doing so “allows the smoothing of flow pulses
to…a very high response speed to show the tendencies of change of the flow
rate (Final Act. 7, citing Schäefer, p. 1, ¶ 9).
Appellant argues that:
[T]he proposed combination of Bose and Schaefer does not
teach or suggest, or render obvious, the claimed "divide the
flow rate measurement signal into a series of time periods, with
each time period including a single flow peak that is
substantially centered in the time period." More particularly,
Schaefer specifically teaches that the flow peaks are not
centered in purported time periods and, moreover, specifically
require that the flow peaks not be centered in the purported time
periods.
(Appeal Br. 27). Appellant’s argument is persuasive.
The Examiner relies on the following passage from Schäefer as
teaching dividing the flow rate measurement signal into a series of time
periods with each time period including a single flow peak substantially
centered in the time period:
This object is achieved according to the invention is achieved
in that the signal processing circuit in an operating mode for
measurement in the substantially periodically pulsating flow
is operable, in which the filter - and evaluation device of a
time-related averaging of the measurement signal by means of
center position, the time intervals by means of the practice of
the period duration of the corresponding to the pulsating flow
periodic measurement signal is adapted to, wherein to
determine a respective averaging interval a pulse detection –
and the trigger circuit is provided which, by monitoring of the
occurrence of successive measurement signal pulses, the
measuring signal periods of the measurement signal are
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detected, and the trigger signals for the filter - and evaluation
device is generated around the center position, the time interval
of a respective signal center position, the operation with the
measuring signal period to synchronize.
(Schäefer, p. 1, ¶8, emphasized portion specifically relied on by the
Examiner). Appellants contend, however, that Schäefer conducts its
measurements with the peak flow not “substantially centered” in the time
period (Appeal Br. 28–29). In this regard, Appellant relies on the following
passage from Schäefer, which describes how the time periods are set:
“In the flow rate/time - diagram according to Fig. 2, the typical time
profile of such a modulated in a pulsating manner shown by flow. A
corresponding time profile also has the analog measured-signal
voltage at the input of the sampling - and hold circuit 11 - derived
therefrom as well as the digital value train at the output of the
analog/digital - converter circuit 13 on. The microprocessor circuit 15
reads the digital values in real time as a result of a and monitors the
digital values on exceeding a in Fig. 2 in the case of s indicated
threshold level. As soon as this threshold levels of the digital values is
exceeded, the microprocessor circuit 15 with the numerical integration
of the digitized recoplate [sic]. The respective integration operation is
ended as soon as the threshold values is exceeded again, whereupon,
in a corresponding way, a following integration operation is started.
The result of the respective integration, for calculation of the time
average of the measurement signal via the…integration time interval t
used corresponding averaging time interval.”
(Schäefer, p. 3). This is illustrated in Schäefer’s Fig. 2:

Schäefer’s Fig. 2 shows in a flow rate/time - diagram the typical line
profile of the flow in the case of conveyance of the respective
measurement liquid.
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As can be seen from the Fig. 2, and as is evident from the manner in
which the time periods are set based on the flow rates, each peak flow rates
is not “substantially centered in the time period,” because the time period is
set so that it starts just as the peak is being reached. The Examiner argues
that “It is considered that when the period between the peaks is short, the
peak is substantially centered” in the time period. However, as is shown in
Fig. 2, the method by which the time period is set results in the peak not
being substantially centered, regardless of how long the period between
peaks is.
The Examiner has the initial burden of establishing a prima facie case
of obviousness based on an inherent or explicit disclosure of the claimed
subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) (“[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie case of
unpatentability.”). To establish a prima facie case of obviousness, the
Examiner must show that each and every limitation of the claim is described
or suggested by the prior art or would have been obvious based on the
knowledge of those of ordinary skill in the art. In re Fine, 837 F.2d 1071,
1074 (Fed. Cir. 1988). In this instance, the evidence of record does not
adequately establish that the cited art would have made obvious the
limitation “with each time period including a single flow peak that is
substantially centered in the time period.” Accordingly, we reverse the
obviousness rejections.

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CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
1–20 § 101

1–20
1, 2, 4–12, and
14–20
§ 103(a)
Bose and Schäefer

1, 2, 4–12, and
14–20
3 and 13 § 103(a)
Bose, Schäefer, and
Smith
3 and 13
Overall Outcome 1–20

REVERSED