Ronald Sperry et al.

Patent Trials and Appeals Board

Nov 23, 2021

2020006384 (P.T.A.B. Nov. 23, 2021)

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.
13/089,546 04/19/2011 Ronald Kent Sperry DUR1041PA/41211.1550 1660
23368 7590 11/23/2021
DINSMORE & SHOHL LLP
FIFTH THIRD CENTER, ONE SOUTH MAIN STREET
SUITE 1300
DAYTON, OH 45402-2023
EXAMINER
PEO, KARA M
ART UNIT PAPER NUMBER
1777
NOTIFICATION DATE DELIVERY MODE
11/23/2021 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):
daytonipdocket@dinsmore.com
kimberly.koen@dinsmore.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD KENT SPERRY
and SUBRAMANYA G. PRASAD

Appeal 2020-006384
Application 13/089,546
Technology Center 1700

BEFORE KAREN M. HASTINGS, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 4–6 and 15–23. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM, but note that we reverse the rejection under 35 U.S.C. §
101 and summarily affirm the rejections under 35 U.S.C. § 103.

1 Appellant refers to “applicant” as defined in 37 C.F.R. 1.42. Appellant
identifies the real party in interest as Flowserve Management Company.
Appeal Br. 2.
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CLAIMED SUBJECT MATTER
Claim 15, reproduced below, is illustrative of the claimed subject
matter:
15. An ebullating pump system comprising:
an ebullating pump having a motor;
sensors connected to the motor that measure voltage, current,
and temperature of the motor; and
a computer-based pump monitor comprising a processor
and a non-transitory memory connected to the processor, the
non-transitory memory containing computer readable and
executable instructions thereon that:
receives sensor data from the sensors;
stores relationship data in a memory that relates an
operating speed of the motor to torque;
utilizes the processor to determine an expected torque
using at least one of the voltage, current and temperature of the
sensor data and the relationship data to determine an actual
torque for the pump during operation thereof by using at least
one of the voltage, current and temperature of the sensor data,
and to determine an apparent density of the fluid based on the
expected torque and actual torque;
uses the apparent density to detect an irregular operating
condition while the pump is circulating at least a petroleum-
based fluid; and
generates a computerized alert to be sent automatically to
an interface device to convey the computerized alert to a user
upon detection of an irregular operating condition of the pump.
(Appeal Br. 19–20 (Claims App.)).
Independent claim 21 recites a method of operating a pump in an
ebullated reactor corresponding to the ebullating pump system of claim 15
(Appeal Br. 20–21(Claims App.)).
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REJECTION ON APPEAL
Claims 4–6 and 15–23 are rejected under 35 U.S.C. § 101 as being
directed to judicially-excepted subject matter.
At the outset, we note that Appellant does not present any arguments
with respect to the Examiner’s prior art rejections under 35 U.S.C. §103 of
all the claims on appeal (as listed in the Table at the end of this decision),
and thus all of these rejections are summarily affirmed.2
OPINION
Introduction
35 U.S.C. § 101 provides that “[w]hoever invents or discovers any
new and useful process, machine, manufacture, or composition of matter, or
any new and useful improvement thereof, may obtain a patent therefor.”
In that regard, illustrative claim 15 (above) covers a “machine” and is
thus statutory subject matter for which a patent may be obtained.3 Likewise
claim 21 is directed to a “method”; that is, a process (corresponding to the
device of claim 15) and is thus statutory subject matter for which a patent
may be obtained. These facts are not in dispute.

2 See Reply Br. 2–3 (the Reply Brief pages are not numbered; numbers have
been assigned). These prior art rejections are listed in the Summary Table at
the end of this decision.
3 This corresponds to Step 1 of the 2019 Revised 101 Guidance which
requires determining whether a “claim is to a statutory category.”
2019 Revised Matter Eligibility Guidance, 84 Fed. Reg. 50, 53 (Jan. 7,
2019). See also sentence bridging pages 53 and 54 (“consider[ ] whether the
claimed subject matter falls within the four statutory categories of patentable
subject matter identified by 35 U.S.C. [§] 101 . . . .”). 84 Fed. Reg. at 53,
54.
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However, the § 101 provision “contains an important implicit
exception: 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)).
In that regard, notwithstanding that independent claim 15 as well as
independent claim 21 are statutory subject matter (as are the claims
depending therefrom), the Examiner has raised a question of patent-
eligibility on the ground that the claims are directed to an abstract idea.
Alice identifies a two-step framework for determining whether
claimed subject matter is directed to an abstract idea. Alice, 573 U.S. at 217.
Alice step one – the “directed to” inquiry
According to Alice step one, “[w]e must first determine whether the
claims at issue are directed to a patent-ineligible concept” (Id. at 218
(emphasis added)).
The Examiner determined, inter alia, that the claims are “directed to
an abstract idea” because they “recite a mathematical relationship and
calculation of apparent density based on expected and actual torque values.”
(Final Act. 3). The Examiner contends that the claims do not include
additional elements that are sufficient to amount to significantly more than
the judicial exception for reasons stated therein (Final Act. 4–5).
With respect to claims 15 and 24, Appellant contends, inter alia, that
the claims do not recite an abstract idea (Appeal Br. 9) because both claims
“are directed toward a tangible piece of fluid-handling machinery that is
used in petroleum hydrocracking operations, and more particularly how to
determine if such machinery is operating correctly or not” (Appeal Br. 10).
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Appellant also contends that the claims do not explicitly recite the
mathematical relationship (Appeal Br. 10–11 (citing Ex parte Linden); see
also Reply Br. 5). Appellant recognizes “the need for the claimed
improvements as a way to avoid performance degradation problems that are
traditionally associated with ebullating reactor pumps where the
environment makes maintenance of such equipment difficult and costly.”
(Appeal Br. 13; see also Reply Br. 6 (discussing CardioNet, LLC v.
InfoBionic, Inc., 955 F.3d 1358 (Fed. Cir. 2020))).
Accordingly, there is a dispute over what the claims are directed to.
Are they directed to “an abstract idea” because they “are directed towards
math in words” (Ans. 25; emphasis deleted) or are they directed to an
ebullating pump system (and corresponding method) for evaluating the
performance of an ebullating pump (Appeal Br. 12–15 (e.g., Spec. ¶ 5, 11))?
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Claim Construction4
We consider claim 15 as a whole5 giving it the broadest reasonable
construction6 as one of ordinary skill in the art would have interpreted it in
light of the Specification7 at the time of filing.
Claim 15 describes an “ebullating pump system” using an “ebullating
pump having a motor”, “sensors connected to the motor” and “a computer-
based pump monitor” (see claim 15).
Specifically, according to claim 15, the computer based pump monitor
receives data from the sensors and uses the processor to determine an
expected torque using the sensor data and stored relationship data to

4 “[T]he important inquiry for a § 101 analysis is to look to the claim.”
Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336,
1345 (Fed. Cir. 2013). “In Bancorp Servs., L.L.C. v. Sun Life Assurance Co.
of Can., 687 F.3d 1266, 1273 (Fed. Cir. 2012), the court observed that
‘claim construction is not an inviolable prerequisite to a validity
determination under § 101.’ However, the threshold of § 101 must be
crossed; an event often dependent on the scope and meaning of the claims.”
Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1347–48
(Fed. Cir. 2015).
5 “In determining the eligibility of respondents’ claimed process for patent
protection under § 101, their claims must be considered as a whole.”
Diamond v. Diehr, 450 U.S. 175, 188 (1981).
6 2019 Revised 101 Guidance, page 52, footnote 14 (“If a claim, under its
broadest reasonable interpretation . . . .”) 2019 Revised 101 Guidance, 84
Fed. Reg. at 54 n.14 (Emphasis added.).
7 “First, it is always important to look at the actual language of the
claims. . . . Second, in considering the roles played by individual
limitations, it is important to read the claims ‘in light of the specification.’”
Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1378
(Fed. Cir. 2017) (Linn, J., dissenting in part and concurring in part) (citing
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016),
among others).
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determine an actual torque for the pump, then determines an apparent
density of the pumped fluid based on the expected and actual torque values,
using this apparent density to detect an irregular operating condition while
the pump is circulating a petroleum based fluid, and finally generates a
computerized alert upon detection of an irregular operating condition of the
pump.
According to the Specification, current devices and methods have not
adequately evaluated the performance and degradation thereof of an
ebullating pump so as to avoid costly downtime and repairs of the ebullating
reactor (e.g., Spec. ¶ 5, 11).
Consistent with the intrinsic evidence, we reasonably, broadly
construe claim 15 (as well as claim 21) as being directed to a pump system
and method using pump motor sensor data and a processor or rules to
generate both an expected torque and actual torque value of the pump and
determine an apparent density of the petroleum based fluid and use this
information to detect whether the performance of the pump is degrading as
claimed. Thus the claims are directed to more than what the Examiner
describes; that is, to processing ebullating pump motor sensor data in a
specific way so as to provide for an evaluation and alert of the degradation
of the pump (e.g., Spec. ¶¶ 5, 6, 8, 11). Cf. McRO, Inc. v. Bandai Namco
Games Am. Inc., 837 F.3d 1299, 1316 (Fed. Cir. 2016) (The claim uses
limited rules in a process specifically designed to achieve an improved
technological result in conventional industry practice.)
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The Abstract Idea8
The claims recite steps of, e.g., “determin[ing] an apparent density of
the fluid based on the expected torque and actual torque” (claim 15) or
“comparing the expected torque and the actual torque to determine an
apparent density of the petroleum-based fluid” (claim 21). Those limitations
involve mathematical operations. Thus, in accordance with the Guidance,
step (1), we determine that claim 1 recites a mathematical concept, and
therefore recites an abstract idea. See 2019 Revised 101 Guidance, 84 Fed.
Reg. at 52, 55–56.
Improvement in the Functioning of a system and method9
Although the claims recite an abstract idea as set forth above, we
determine that the claims are not “directed to” an abstract idea because we

8 See Step 2A of the 2019 Revised 101 Guidance. Step 2A determines
“whether a claim is ‘directed to’ a judicial exception,” such as an abstract
idea. 2019 Revised 101 Guidance, 84 Fed. Reg. at 53. Step 2A is a two
prong inquiry.
9 See Prong Two (“If the Claim Recites a Judicial Exception, Evaluate
Whether the Judicial Exception Is Integrated Into a Practical
Application”) of Step 2A of the 2019 Revised 101 Guidance. “A claim that
integrates a judicial exception into a practical application will apply, rely on,
or use 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.” 2019 Revised 101
Guidance, 84 Fed. Reg. at 54. One consideration, implicated here, that is
“indicative that an additional element (or combination of elements) may
have integrated the exception into a practical application” (id. at 55) is if
“[a]n additional element reflects an improvement in the functioning of a
computer, or an improvement to other technology or technical field” (id.).
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find that the abstract idea is integrated into a practical application under Step
2A, Prong 2 of the Guidance.
The Examiner’s characterization of what the claim is directed to is
inaccurate. The Examiner indicated that the claim is directed to “math in
words” (Ans. 25) and believes the claims are “analogous to [those of] Parker
v Flook”. Ans. 26. The claimed device and process, however, requires an
ebullating pump with a motor and data from sensors connected to the pump
motor without which there cannot be any data to process. The claim calls
for a combination of the pump and a processor to process said data in a
specific way to detect an irregular operating condition of the pump. The
preponderance of the evidence supports Appellant’s position that the
combination of the pump, motor, and sensors with the pump monitor
processor specially processing the sensor data as claimed adds significantly
more than the abstract idea the claims are alleged to be directed to so as to
transform the abstract idea into an inventive concept. Generally Appeal Br.,
Reply Br., (e.g., Spec. ¶¶ 5, 6, 8, 11).
“The ‘abstract idea’ step of the inquiry calls upon us to look at the
‘focus of the claimed advance over the prior art’ to determine if the claim’s
‘character as a whole’ is directed to excluded subject matter.” Affinity Labs
of Tex., LLC v. DIRECTTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016)
(quoting Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed.
Cir. 2016)); see also Enfish, 822 F.3d at 1335. As the Federal Circuit stated
in Ancora Technologies, Inc. v. HTC America, Inc., 908 F.3d 1343, 1347
(Fed. Cir. 2018):
We examine the patent’s “‘claimed advance’ to
determine whether the claims are directed to an abstract idea.”
Finjan, Inc. v. Blue Coat System, Inc., 879 F.3d 1299, 1303
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(Fed. Cir. 2018). “In cases involving software innovations, this
inquiry often turns on whether the claims focus on ‘the specific
asserted improvement in computer capabilities . . . or, instead,
on a process that qualifies as an “abstract idea” for which
computers are invoked merely as a tool.’” Id. (quoting Enfish,
822 F.3d at 1335–36); see BSG Tech LLC v. Buyseasons, Inc.,
899 F.3d 1281, 1285–86 (Fed. Cir. 2018). Computers are
improved not only through changes in hardware; “[s]oftware
can make non-abstract improvements to computer technology
. . . .” Enfish, 822 F.3d at 1335; see Finjan, 879 F.3d at 1304.
We have several times held claims to pass muster under Alice
step one when sufficiently focused on such improvements.
The Specification’s description of the problem and solution shows the
advance over the prior art by the claimed invention is in more accurately
evaluating the performance of an ebullating pump with early detection of its
performance degradation so as to be able to prevent more serious and costly
repairs to the entire reactor.
In our view, the claim as a whole reflects a specific asserted
improvement in technology, rooted in computer technology, over that which
was available in the prior art. See Spec. ¶ 5. Accordingly, we find the
Appellant’s arguments persuasive that the claimed subject matter is not
directed to merely performing mathematical processes but to a technical
improvement persuasive, given the present record.
Specific asserted improvements, when claimed, can show that claimed
subject matter is not directed to an abstract idea. Cf. McRO, Inc. v. Bandai
Namco Games Am. Inc., 837 F.3d 1299, 1316 (Fed. Cir. 2016) (“When
looked at as a whole, claim 1 is directed to a patentable, technological
improvement over the existing, manual 3–D animation techniques.”).
It should be noted that we have addressed purported specifically
asserted improvements in technology under step one of the Alice framework.
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This is consistent with the case law. See Ancora, 908 F.3d at 1347 (“We
have several times held claims to pass muster under Alice step one when
sufficiently focused on such improvements.”). It can be discussed under
step two of the Alice framework as well. See buySAFE, Inc. v. Google, Inc.,
765 F.3d 1350, 1354–55 (Fed. Cir. 2014). “[R]ecent Federal Circuit
jurisprudence has indicated that eligible subject matter can often be
identified either at the first or the second step of the Alice/Mayo
[framework].” 2019 Revised 101 Guidance, 84 Fed. Reg. at 53; see also id.
n.17.
In any case, there is sufficient evidence in the record before us that the
claimed subject matter reflects a specific asserted improvement in
technology and for that reason we determine that independent claim 15 (as
well as method claim 21), and the claims depending therefrom, are not
directed to an abstract idea. Accordingly, within the meaning of the 2019
Revised 101 Guidance, we find there is an integration into a practical
application.
For the foregoing reasons, the Examiner’s determination under Alice
step one is not sustainable. Consequently, we do not reach the merits of
Examiner’s determination under Alice step two.
The 101 rejection is not sustained.
CONCLUSION
The rejection of claims 4–6 and 15–23 under 35 U.S.C. § 101 as being
directed to judicially excepted subject matter is reversed.
The Examiner’s § 103 rejections are summarily affirmed.
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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
4–6, 15–23 101 Eligibility 4–6, 15–23
5, 15, 16, 18,
20–23
103 Beck, Micromo,
Cox
5, 15, 16,
18, 20–23

4, 17 103 Beck, Micromo,
Cox, Catalysts
4, 17
6, 19 103 Beck, Micromo,
Cox, Hays,
Takamatsu
6, 19
15, 17, 18,
20
103 Harmer, Boyd 15, 17, 18,
20

16 103 Harmer, Boyd,
Vyas
16
19 103 Harmer, Boyd,
Takamatsu
19
Overall
Outcome
4–6, 15–23
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) (2019).
AFFIRMED