Shiva Sander-Tavallaey et al.

Patent Trials and Appeals Board

Jul 25, 2019

14224752 - (D) (P.T.A.B. Jul. 25, 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.
14/224,752 03/25/2014 Shiva Sander-Tavallaey 04189-P0173A 2774
137670 7590 07/25/2019
ABB - Whitmyer IP Group LLC
600 Summer Street
Stamford, CT 06901
EXAMINER
SUN, XIUQIN
ART UNIT PAPER NUMBER
2863
MAIL DATE DELIVERY MODE
07/25/2019 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 SHIVA SANDER-TAVALLAEY, KARI SAARINEN,
HANS ANDERSSON, and ANDRE CARVALHO BITTENCOURT
____________

Appeal 2018-000713
Application 14/224,752
Technology Center 2800
____________

Before St. JOHN COURTENAY III, THU A. DANG, and JOHN A.
EVANS, Administrative Patent Judges.

EVANS, Administrative Patent Judge.

DECISION ON APPEAL
Appellants1 seek our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of Claims 1–9 and 11–18. App. Br. 1. We have
jurisdiction under 35 U.S.C. § 6(b). We heard oral arguments on July 3,
2019.
We REVERSE.2

1 Appellants state the real party in interest is ABB Research Ltd. App. Br. 2.
2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed June 12, 2017, “App. Br.”), the Reply Brief
(filed October 30, 2017, “Reply Br.”), the Examiner’s Answer (mailed
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STATEMENT OF THE CASE
The claims relate to a method to detect a fault in a robot joint. See
Abstract.
Invention
Claims 1, 16, and 17 are independent. An understanding of the
invention can be derived from a reading of Claim 1, which is reproduced
below.
1. A method for detecting a fault in a robot joint, the
method comprising the steps of:
- performing a first torque measurement at the robot joint
to obtain a first set of torque values and weighting each
individual torque value of the first set of torque values by
means of a weighting vector, the weighting vector having a set
of different weights so that the first set of torque values reflects
torque magnitudes in time domain;
- calculating a first distribution characteristic reflecting a
distribution of the first set of torque values;
- performing a second torque measurement at the robot
joint and weighting individual torque values by means of the
weighting vector to thereby obtain a second set of torque values
reflecting torque magnitudes in time domain;
- calculating a second distribution characteristic
reflecting a distribution of the second set of torque values;
- comparing the first and the second distribution
characteristics to determine whether a fault is present or not;
and

August 30, 2017, “Ans.”), the Final Action (mailed March 14, 2017, “Final
Act.”), and the Specification (filed March 25, 2014, “Spec.”) for their
respective details.
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- performing maintenance on the robot joint when it is
determined that a fault is present.

Rejections3
Claims 1–9 and 11–18 stand rejected under 35 U.S.C. § 101 as
directed to non-statutory subject matter without significantly more.4 Final
Act. 2–4.
ANALYSIS
Appellants’ arguments regarding Claims 1–9 and 11–18 are presented
with general reference to the independent Claims. See App. Br. 6–14.
Therefore, we decide the appeal of the § 101 rejections with reference to
Claim 1 and refer to the rejected claims collectively herein as “the claims.”
See 37 C.F.R. § 41.37(c)(1)(iv); In re King, 801 F.2d 1324, 1325 (Fed. Cir.
1986).
CLAIMS 1–9 AND 11–18: INELIGIBLE SUBJECT MATTER.
PRINCIPLES OF LAW
A. 35 U.S.C. § 101
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.5

3 The present Application is being examined under the pre-AIA first to
invent provisions.
4 The Examiner has withdrawn the rejection of Claims 1, 7–9, 13, 15, 16,
and 18 under 35 U.S.C. § 103 as having been successfully traversed. Ans. 2.
5 This threshold analysis of whether a claim is directed to one of the four
statutory categories of invention, i.e., a process, machine, manufacture, or
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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. Mayo Collaborative Services v. Prometheus
Labs., Inc., 566 U.S. 66, 70 (2012) (citing Diamond v. Diehr, 450 U.S. 175,
185 (1981)).
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. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014)
(citing Mayo, 566 U.S. at 75–77). 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; see also 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, 69
(1972)). Concepts determined to be patent eligible include physical and
chemical processes, such as “molding rubber products” (Diehr, 450 U.S. at

composition of matter, is referred to as “Step 1” in the patent-eligibility
inquiry under 35 U.S.C. § 101.
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191); “tanning, dyeing, making water-proof cloth, vulcanizing India rubber,
smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. (15
How.) 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 “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, 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. at 191 (citing
Benson and Flook), 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.”).
Abstract ideas may include, but are not limited to, fundamental
economic practices, methods of organizing human activities, and
mathematical formulas or relationships. Alice, 573 U.S. at 217–21. Under
this guidance, we must therefore ensure at step one that we articulate what
the claims are directed to with enough specificity to ensure the step one
inquiry is meaningful. Id. at 217 (“[W]e tread carefully in construing this
exclusionary principle lest it swallow all of patent law.”).
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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. (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.
B. USPTO Revised Guidance6
The PTO recently published revised guidance in the Federal Register
concerning the application of § 101.
Under the Revised 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);7 and
(2) additional elements that integrate the judicial
exception into a practical application (see Manual for

6 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(January 7, 2019) (hereinafter “Revised Guidance,” or “Rev. Guid.”)
(https://www.govinfo.gov/content/pkg/FR-2019-01-07/pdf/2018-28282.pdf).
7 Referred to as “Revised Step 2A, Prong 1” in the Revised Guidance
(hereinafter “Step 2A(i)”).
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Patent Examining Procedure (“MPEP”) §§ 2106.05(a)–(c),
(e)–(h)).8
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 are 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.9
See Revised Guidance.
Step 2A(i) — Abstract Idea
Informed by our judicial precedent, the Revised Guidance extracts and
synthesizes key concepts identified by the courts as abstract ideas to explain
that the abstract idea exception includes the following groupings of subject
matter, when recited as such in a claim limitation:
(a) Mathematical concepts—mathematical
relationships, mathematical formulas or equations,
mathematical calculations;
(b) Certain methods of organizing human activity —
fundamental economic principles or practices (including
hedging, insurance, mitigating risk); commercial or legal

8 Referred to as “Revised Step 2A, Prong 2” in the Revised Guidance
(hereinafter “Step 2A(ii)”).
9 Items (3) and (4) continue to be collectively referred to as “Step 2B” of the
Supreme Court’s two-step framework, described in Mayo and Alice.
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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); and
(c) Mental processes—concepts performed in the
human mind (including an observation, evaluation,
judgment, opinion).
Under the Revised Guidance, if the claim does not recite a judicial
exception (a law of nature, natural phenomenon, or subject matter within the
enumerated groupings of abstract ideas above), then the claim is patent-
eligible at Step 2A(i). This determination concludes the eligibility analysis,
except in rare situations identified in the Revised Guidance.10
However, if the claim recites a judicial exception (i.e., an abstract idea
enumerated above, a law of nature, or a natural phenomenon), the claim
requires further analysis for a practical application of the judicial exception
in Step 2A(ii).
Step 2A(ii) — Practical Application
If a claim recites a judicial exception in Step 2A(i), we determine
whether the recited judicial exception is integrated into a practical
application of that exception in Step 2A(ii) by: (a) identifying whether there

10 In the rare circumstance in which an Examiner believes a claim limitation
that does not fall within the enumerated groupings of abstract ideas should
nonetheless be treated as reciting an abstract idea, the procedure described in
of the Guidance for analyzing the claim should be followed. See Guidance,
Section III.C.
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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.
The seven identified “practical application” sections of the MPEP,11
cited in the Revised Guidance under Step 2A(ii), are:
(1) MPEP § 2106.05(a) Improvements to the Functioning of
a Computer or To Any Other Technology or Technical
Field
(2) MPEP § 2106.05(b) Particular Machine
(3) MPEP § 2106.05(c) Particular Transformation
(4) MPEP § 2106.05(e) Other Meaningful Limitations
(5) MPEP § 2106.05(f) Mere Instructions To Apply An
Exception
(6) MPEP § 2106.05(g) Insignificant Extra-Solution Activity
(7) MPEP § 2106.05(h) Field of Use and Technological
Environment
If the recited judicial exception is integrated into a practical application as
determined under one or more of the MPEP sections cited above, then the
claim is not directed to the judicial exception, and the patent-eligibility
inquiry ends. If not, then analysis proceeds to Step 2B.

11 See MPEP § 2106.05(a)–(c), (e)–(h). Citations to the MPEP herein refer
to revision [R-08.2017].
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Step 2B — “Inventive Concept” or “Significantly More”
Under our precedent, it is possible that a claim that does not
“integrate” a recited judicial exception under Step 2A(ii) is nonetheless
patent eligible. For example, the claim may recite additional elements that
render the claim patent eligible even though a judicial exception is recited in
a separate claim element.12 The Federal Circuit has held claims eligible at
the second step of the Alice/Mayo test (USPTO Step 2B) because the
additional elements recited in the claims provided “significantly more” than
the recited judicial exception (e.g., because the additional elements were
unconventional in combination).13 Therefore, if a claim has been determined
to be directed to a judicial exception under Revised Step 2A, we must
evaluate the additional elements individually and in combination under Step
2B to determine whether they provide an inventive concept (i.e., whether the
additional elements amount to significantly more than the exception itself).14
Under the Revised Guidance, we must consider in Step 2B whether an
additional element or combination of elements: (1) “Adds a specific

12 See, e.g., Diehr, 450 U.S. at 187.
13 See, e.g., Amdocs (Israel), Ltd. v. Openet Telecom, Inc., 841 F.3d 1288,
1300, 1304 (Fed. Cir. 2016); BASCOM Global Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341, 1349–52 (Fed. Cir. 2016); DDR Holdings,
LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257–59 (Fed. Cir. 2014).
14 The patent eligibility inquiry may contain underlying issues of fact.
Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325.
(Fed. Cir. 2016). In particular, “[t]he question of whether a claim element or
combination of elements is well-understood, routine and conventional to a
skilled artisan in the relevant field is a question of fact.” Berkheimer v. HP
Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018).
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limitation or combination of limitations that are not well-understood,
routine, conventional activity in the field, which is indicative that an
inventive concept may be present;” or (2) “simply appends well-understood,
routine, conventional activities previously known to the industry, specified
at a high level of generality, to the judicial exception, which is indicative
that an inventive concept may not be present.” See Revised Guidance,
III.B.15
In the Step 2B analysis, an additional element (or combination of
elements) is not well-understood, routine or conventional unless the
examiner finds an evidentiary basis, and expressly supports a rejection in
writing with, one or more of the following:
1. A citation to an express statement in the
specification or to a statement made by an applicant during
prosecution that demonstrates the well-understood, routine,
conventional nature of the additional element(s). . . .
2. A citation to one or more of the court decisions
discussed in MPEP § 2106.05(d)(II) as noting the well-
understood, routine, conventional nature of the additional

15 In accordance with existing Step 2B guidance, an Examiner’s finding that
an additional element (or combination of elements) is well understood,
routine, conventional activity must be supported with at least one of the four
specific types of evidence required by the USPTO Berkheimer
Memorandum, as shown above. For more information concerning evaluation
of well-understood, routine, conventional activity, see MPEP § 2106.05(d),
as modified by the USPTO Berkheimer Memorandum (USPTO
Commissioner for Patents Memorandum dated Apr. 19, 2018, “Changes in
Examination Procedure Pertaining to Subject Matter Eligibility, Recent
Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.)” (hereinafter
“Berkheimer Memo”).
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element(s).
3. A citation to a publication that demonstrates the
well-understood, routine, conventional nature of the additional
element(s)
. . . .
4. A statement that the examiner is taking official
notice of the well-understood, routine, conventional nature of
the additional element(s)
See Berkheimer Memo.
The analysis in Step 2B further determines whether an additional
element or combination of elements:
(a) Adds a specific limitation or combination of
limitations that are not well-understood, routine, conventional
activity in the field, which is indicative that an inventive
concept may be present; or
(b) simply appends well-understood, routine,
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial exception,
which is indicative that an inventive concept may not be
present.
Revised Guidance, and see Berkheimer Memo.
If the Examiner or the Board determines under Step 2B that the
element (or combination of elements) amounts to significantly more than the
exception itself, the claim is eligible, thereby concluding the eligibility
analysis. However, if a determination is made that the element and
combination of elements does not amount to significantly more than the
exception itself, the claim is ineligible under Step 2B, and the claim should
be rejected for lack of subject matter eligibility.
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Step 1
Each independent Claim, 1, 16, and 17, recites “[a] method for
detecting a fault in a robot joint,” and is therefore is a method (process)
claim which recites one of the enumerated categories of eligible subject
matter set forth in 35 U.S.C. § 101. Therefore, the issue before us is whether
the claims are directed to a judicial exception without significantly more.
Step 2A(i): Does the Claim Recite a Judicial Exception?
Under previous subject matter eligibility guidance, the Examiner
identifies the claims as being directed to the abstract idea of fault detection.
Final Act. 2. The Examiner notes the claims recite method steps such as
obtaining torque measurement values, weighting the measured values to
obtain torque values in a time domain, and further obtaining distributions of
torque characteristics. Id. The Examiner concludes the claims, when
viewed as a whole, seek to tie up or preempt the judicial exception similarly
as did the claims in Digitech because they are related to the concept of
organizing information through mathematical correlations. Id., 3 (citing 79
Fed. Reg., 74622). The Examiner further finds the limitation: “performing
maintenance on the robot joint when it is determined that a fault is present”
is insignificant post extra solution activity and is routine and well-known in
the art. Id.
Appellants contend the claims satisfy the machine-or-transformation
test because they transform data in a manner that cannot be performed in a
human mind. App. Br. 14 (citing PNC Bank et al. v. Secure Axcess, LLC,
CBM2014-00100 (P.T.A.B. Sept. 9, 2014)).
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We review the claims, de novo, to determine whether they comply
with 101. “Whether a claim is drawn to patent-eligible subject matter is an
issue of law that we review de novo.” SiRF Tech., Inc. v. Int’l Trade
Common, 601 F.3d 1319, 1331 (Fed. Cir. 2010).
The preamble to Claim 1 recites: “[a] method for detecting a fault in a
robot joint, the method comprising the steps of:” and further recites the
following limitations as set forth in the left column of Table I below. In the
right column, the limitations of Claim 1 are analyzed as to whether the
limitation recites a judicial exception, as set forth in the Revised Guidance.
Claim 1 Revised Guidance
[a]16 performing a first torque
measurement at the robot joint to
obtain a first set of torque values
Insignificant extra-solution activity,
“mere data gathering.” Rev. Guid.
55, n.31.
[b] weighting each individual torque
value of the first set of torque values
by means of a weighting vector, the
weighting vector having a set of
different weights so that the first set
of torque values reflects torque
magnitudes in time domain;
Abstract idea, “mathematical
relationships, mathematical formulas
or equations, mathematical
calculations.” Rev. Guid. 52.
[c] calculating a first distribution
characteristic reflecting a
distribution of the first set of torque
values;
Abstract idea, “mathematical
relationships, mathematical formulas
or equations, mathematical
calculations.” Rev. Guid. 52.
[d] performing a second torque
measurement at the robot joint
Insignificant extra-solution activity,
“mere data gathering.” Rev. Guid.
55, n.31.

16 Indicia, e.g., “[a],” added to identify limitations.
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[e] weighting individual torque
values by means of the weighting
vector to thereby obtain a second set
of torque values reflecting torque
magnitudes in time domain;
Abstract idea, “mathematical
relationships, mathematical formulas
or equations, mathematical
calculations.” Rev. Guid. 52.
[f] calculating a second distribution
characteristic reflecting a
distribution of the second set of
torque values;
Abstract idea, “mathematical
relationships, mathematical formulas
or equations, mathematical
calculations.” Rev. Guid. 52.
[g] comparing the first and the
second distribution characteristics to
determine whether a fault is present
or not; and
Abstract idea, i.e., mental processes,
e.g., concepts performed in the
human mind including an
observation, evaluation, judgment,
opinion. Rev. Guid. 52.
[h] performing maintenance on the
robot joint when it is determined
that a fault is present.

Under Step 2A(i), we conclude limitations [b], [c], [e], and [f] recite
abstract ideas in the “mathematical relationships” category and limitation [g]
recites an abstract idea in the “mental process” category.
Step 2A(ii): Judicial Exception Integrated into a Practical Application?
If the claims recite a patent-ineligible concept, as we conclude above,
we proceed to the “practical application” Step 2A(ii) in which 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
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determine whether they integrate the exception into a practical application.
The Revised Guidance is “designed to more accurately and consistently
identify claims that recite a practical application of a judicial exception []
and thus are not ‘directed to’ a judicial exception.” Revised Guidance, 53.
For the reasons which follow, we conclude that Appellants’ claims in
fact do integrate the judicial exception into a practical application.
MPEP § 2106.05(a) “Improvements to the Functioning of a Computer
or To Any Other Technology or Technical Field.”
“In determining patent eligibility, examiners should consider whether
the claim ‘purport(s) to improve the functioning of the computer itself’” or
“any other technology or technical field.” MPEP § 2106.05(a).
Appellants’ disclose:
Condition based maintenance, “maintenance when required,”
can deliver a good compromise between maintenance costs and
operational costs, reducing the overall costs. The extra
challenge of condition based maintenance is to define methods
to determine the condition of the equipment. Preferably, this
should be done automatically.
Spec., ¶ 2. Appellants further disclose:
The invention is based on the realization that condition
monitoring of industrial robots can make a direct use of the
repetitive behavior of the system when the monitored quantity
is suitable. A difference between distributions of torque
measurements taken under recurring conditions is found out to
be such suitable quantity.
Spec., ¶ 6. Thus, the claimed invention purports to improve the technology
of condition-based maintenance.
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The Examiner finds limitation [h], “performing maintenance on the
robot joint when it is determined that a fault is present,” is “insignificant
post extra solution activity.” Final Act. 3–4.17 We disagree.
We find limitation [h] ties the prior data-gathering and analysis steps
to the technology of condition-based maintenance and is responsible for the
ability of the prior limitations to improve that technology. In Diehr, the
Supreme Court said: “one does not need a ‘computer’ to cure natural or
synthetic rubber, but if the computer use incorporated in the process patent
significantly lessens the possibility of ‘overcuring’ or ‘undercuring,’ the
process as a whole does not thereby become unpatentable subject matter.”
Diehr, 450 U.S. at 187. Similarly, robot arms may be maintained on a
schedule that does not require determination by a computer, but its use
lessens the possibility of performing maintenance more often than necessary
or less often than may be required. See Spec., ¶ 2. In view of the foregoing,
and in applying the guidance of MPEP § 2106.05(a), we find the judicial
exception recited in Appellants’ claims is integrated into a practical
application and thus, the claims are patent eligible.
DECISION
The rejection of Claims 1–9 and 11–18 under 35 U.S.C. § 101 is
REVERSED.
REVERSED

17 The Examiner further finds: “the claims do not include additional
elements that are sufficient to amount to significantly more than the judicial
exceptions such as not being an improvement to the functioning of a
computer itself.” Final Act. 4. However, the Examiner fails to make a
finding under MPEP § 2106.05(a) as to whether the claims improve any
other technology or technical field.