Yanhong Ochs et al.

Patent Trials and Appeals Board

Apr 28, 2021

2021000357 (P.T.A.B. Apr. 28, 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.
10/970,639 10/21/2004 Yanhong Ochs 21535-70598 6066
91437 7590 04/28/2021
Richard Blakely Glasgow
200 West Capitol Avenue, Suite 2300
Little Rock, AR 72201
EXAMINER
POLLOCK, GREGORY A
ART UNIT PAPER NUMBER
3695
MAIL DATE DELIVERY MODE
04/28/2021 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 YANHONG OCHS and SHAWN JAMES MCCOMB
__________

Appeal 2021-000357
Application 10/970,639
Technology Center 3600
____________

Before HUBERT C. LORIN, JOSEPH A. FISCHETTI, and
CYNTHIA L. MURPHY, Administrative Patent Judges.

LORIN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Yanhong Ochs et al. (Appellant1) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s non-final rejection of claims 1–17. We have
jurisdiction under 35 U.S.C. § 6(b).

SUMMARY OF DECISION
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 FMH AG
RISK INSURANCE COMPANY. Appeal Br. 3.

Appeal 2021-000357
Application 10/970,639
2
THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A method for managing a crop of a grower, the method
comprising:
determining a crop input plan by a planning module of a
data processing system, the crop input plan comprising a
grower compliance requirement for a crop risk insurance policy
requiring a grower to comply with a qualified crop input plan
for a particular crop in the field, the crop input plan defining
application of nitrogen consistent with a preferential rate and
temporal time window;
measuring a first yield per land unit area of the particular
crop in a field by a sensor of a harvester or a combine, wherein
the harvester or the combine is operable to harvest the
particular crop and comprises a path of crop flow, wherein the
sensor comprises a moveable member mounted to the harvester
or the combine in the path of crop flow, wherein the moveable
member is operable to be displaced by a flow of the particular
crop in the path of crop flow, wherein an amount of
displacement of the moveable member corresponds to the first
yield of the particular crop;
estimating, by an estimator of the data processing system,
a second yield per land unit area of the particular crop in a
geographic area, the geographic area covering a greater area
than the field and representative of soil characteristics and
climate associated with the field;
detecting a moisture level and a nitrogen level of soil in
the field by one or more sensing stations deployed in the field,
the sensing stations storing detected sensor data of the levels in
data storage until communicated by wireless transmission to at
least one of the data processing system and work vehicle
electronics of the harvester or the combine after interrogation or
polling of the sensing stations;
the data processing system determining whether the
measured first yield per unit land area of the particular crop in
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Application 10/970,639
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the field is less than the second yield per unit land area, where a
right of payment by an insurer is contingent upon the first yield
per land unit area of the particular crop in the field being less
than the second yield per land unit area by more than a
threshold amount and compliance by the grower with the crop
risk insurance policy; and
alerting the grower and the insurer by the data processing
system if the detected nitrogen level or moisture level in the
field falls below a minimum reference level that complies with
the crop risk insurance policy, where the data processing
system comprises an electronic data processor coupled to a data
bus.

THE REJECTION
Claims 1–17 are rejected under 35 U.S.C. §101 “because the claimed
invention is directed to an abstract idea . . . without significantly more.”
Non–Final Act. 2.

ISSUE
Did the Examiner err in rejecting claims 1–17 under 35 U.S.C. §101
as being directed to an abstract idea without significantly more?

ANALYSIS
Preliminary comment
This application (10/970,639) was before us in appeal 2015–007964,
decided July 26, 2017. In that earlier appeal, we affirmed a rejection under
35 U.S.C. §101, with claim 1 representative of the claims then on appeal.
The claim 1 here on appeal differs from that earlier representative claim 1 in
that it now includes further limiting language with respect to the step of
“measuring a first yield per land unit area of the particular crop in a field by
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Application 10/970,639
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a sensor of a harvester or a combine.” That further limiting language is
italicized in claim 1 reproduced above.
Analysis
Alice Corp. Party Ltd. v. CLS Bank International, 134 S.Ct. 2347
(2014), identifies a two-step framework for determining whether claimed
subject matter is judicially-excepted from patent eligibility under § 101.
According to Alice step one, “[w]e must first determine whether the
claims at issue are directed to a patent-ineligible concept,” such as an
abstract idea. Alice, 134 S.Ct. at 2355.
The Examiner determined that claim 1 is “directed to an abstract idea
of insurance product associated with risk management on the application of
crop inputs (Specification [0001]).” Non–Final Act. 2. The Examiner
appears to have reached this characterization of what the claims are directed
to (i.e., “insurance product associated with risk management on the
application of crop inputs”) based on an analysis of only some of limitations
in claim 1. See Non–Final Act. 4–5 where said limitations are listed. The
limitations as to the sensor italicized in claim 1 reproduced above are not
included in the analysis and, consistent therewith, are not reflected in said
characterization. By not considering the sensor limitations, the
determination under step one of the Alice framework that claim 1 is directed
to an abstract idea is not based on the claim's character as a whole. See
Affinity Labs of Texas, LLC v. DirectTV, LLC, 838 F.3d 1253, 1257 (Fed.
Cir. 2016) (“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”).
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Even if we assume arguendo that claim 1 is directed to an abstract
idea and the sensor limitations insufficiently establish an improvement in
technology to integrate the abstract idea into a practical application, claim 1
may nevertheless be patentable–eligible if it can be established, under step
two of the Alice framework, that the claimed subject matter is significantly
more than the abstract idea. Cf. In re Board of Trustees of Leland Stanford
Junior University, 991 F.3d 1245, 1251 (Fed. Cir. 2021) (“Step two is like a
lifeline: it can rescue and save a claim that has been deemed, at step one,
directed to non-statutory subject matter.)
Step two is “a search for an ‘inventive concept’ — i.e., an element or
combination of elements that is ‘sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself.’” Alice, 134 S.Ct. at 2355 (citing Mayo Collaborative Servs.
v. Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012)).
In that regard, the Examiner determined that
the additional element of using a processor to perform the
abstract idea(s) amounts to no more than mere instructions to
apply the exaction using a generic computer component. Mere
instruction to apply an exertion using a generic computer
component cannot provide an inventive concept. These generic
computer components are claimed at a high level of generality
to perform their basic functions which amount to no more than
generally linking the use of the judicial exception to the
particular technological environment of field of use
(Specification [0007 0023 0029 0044] and applicant's
statements on the record) and further see insignificant extra-
solution activity MPEP § 2106.05 I. A iii, 2106.05(b),
2106.05(b) Ill, 2106.05(g).
Non-Final Act. 7–8.
However, again, the sensor limitations are not treated.
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The Appellant responded by arguing, with respect to Alice step two,
that
the claims are not so limited because the claims do not just
recite a processor, but recite a harvester or combine and also
recite specific structural details of the positioning,
configuration, and operation of a sensor of the harvester and
combine that are integral to the performance of the claimed
method.
Appeal Br. 16.
The Examiner did not provide a satisfactory response. The Examiner
answered, in a different context (i.e., in relation to Step 2A, Prong Two, of
the 2019 Guidance; Ans. 5–6), that the sensor was, inter alia, “optional.” Id.
at 6. However, said sensor limitation is not recited in the claim as optional.
Here, it was incumbent on the Examiner to show that the sensor, as
claimed, is not well understood, routine, or conventional. Consistent with
Berkheimer v. HP Inc., 881 F.3d 1360 (Fed Cir. 2018) and the Office’s
subsequent guidance in “Changes in Examination Procedures Pertaining to
Subject Matter Eligibility, Recent Subject Matter Eligibility Decision
(Berkheimer v. HP, Inc.)” (April 19, 2018; “USPTO Memorandum”)
regarding examining patent applications under Step 2B of the Alice
framework, a step 2B analysis must show an additional element (or
combination of elements) is not well understood, routine, or conventional 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 element(s);
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3) a citation to a publication that demonstrates the well-understood,
routine, conventional nature of the additional element(s); and,

(4) a statement that the examiner is taking official notice of the well-
understood, routine, conventional nature of the additional element(s).

See USPTO Memorandum 3–4.
Since that was not done based on the record before us, the Examiner
did not in fact make a determination that the sensor as claimed is insufficient
to render the claimed subject matter significantly more than the abstract
idea.
Given no other reason to find the claims patent–ineligible, the
rejection is reversed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–17 101 Eligibility 1–17
REVERSED