Yanhong Ochs et al.

Patent Trials and Appeals Board

Apr 28, 2021

2021000360 (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.
10/970,624 10/21/2004 Yanhong Ochs 21535-70596 5409
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 2021-000360
Application 10/970,6241
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. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner’s Non-Final rejection of claims 1–25 and 27–31. We
have jurisdiction under 35 U.S.C. § 6(b).

SUMMARY OF DECISION
We REVERSE.

1 The Appellants identify “FMH AG RISK INSURANCE COMPANY” as
the real party in interest. Appeal Br. 3.
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Application 10/970,624

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THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A method for managing a crop insurance program or a grower
compliance plan via a first data processing system comprising a data
processor coupled to a data bus, the method comprising:
determining an input management plan, by a planning module
of the first data processing system, that specifies parameters for
application of a crop input to a field having a field area within a
geographic area that is greater in geographic scope than the field area,
the input management plan comprising a minimum reference nitrogen
level;
determining whether the field is compliant with the input
management plan by detecting a soil nitrogen level of the field,
wherein the field is compliant with the input management plan if the
soil nitrogen level of the field is above the minimum reference
nitrogen level;
if it is determined that the field is not compliant with the input
management plan, sending an alert that the soil nitrogen level of the
field is below the minimum reference nitrogen level, wherein the alert
comprises instructions for correction of the soil nitrogen level by
application of a corrective amount of additional nitrogen fertilizer
within an allotted maximum time;
if it is determined that the field is not compliant with the input
management plan, applying the corrective amount of additional
nitrogen fertilizer to the field to correct the soil nitrogen level to
above the minimum reference nitrogen level;
measuring, by a yield sensor on a harvesting work vehicle, a
field yield associated with a particular crop while harvesting the
particular crop from the field;
determining whether other fields within the geographic area are
compliant with the input management plan by detecting a soil nitrogen
level of the other fields using remote sensors deployed in the other
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fields, wherein the remote sensors are in communication with the first
data processing system;
estimating, by an estimator of the first data processing system,
an aggregate yield of the particular crop associated with the
geographic area based on the other fields within the geographic area
determined to be compliant fields that comply with the input
management plan;
determining, by the first data processing system, a difference
between the field yield and the aggregate yield; and
making available, by a communications interface of the first
data processing system, the determined difference and a field
identifier associated with the field to a receiving entity that is
associated with at least one of claims and insurance on the field,
where the making available comprises transmitting information on the
determined difference and field identifier to a second data processing
system via a communications network.

THE REJECTION
Claims 1–25 and 27–31 are rejected under 35 U.S.C. §101 as being
directed to an abstract idea without significantly more.

ISSUE
Did the Examiner err in rejecting claims 1–25 and 27–31 under 35
U.S.C. §101 as being directed to an abstract idea without significantly more?
ANALYSIS
The rejection of claims 1–25 and 27–31 under 35 U.S.C. §101 as being
directed to non-statutory subject matter.
Preliminary comment
This application (10/970,624) was before us in appeal 2016–002088,
decided September 28, 2017. In that earlier appeal, we affirmed a rejection
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under 35 U.S.C. §101 of claim 1, which was representative of the claims
then on appeal. Claim 1 here on appeal differs from that representative
claim 1 in that it now includes, inter alia, further limiting language with
respect to the step of “determining whether other fields within the
geographic area are compliant with the input management plan by detecting
a soil nitrogen level of the other fields.” 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 “[m]anaging a
crop insurance program or a grower compliance plan” which is an abstract
idea for being “a fundamental economic practice long prevalent in
commerce systems.” Non-Final Act. 9. The Examiner distilled this
characterization of what the claim is directed to (i.e., “insurance product
associated with risk management on the application of crop inputs”) from a
consideration of the entire claim. See Non-Final Act. 4–5. The limitations
as to the remote sensors deployed in the other fields, wherein the remote
sensors are in communication with the first data processing system, as
italicized in claim 1 reproduced above are not reflected in said
characterization. Thus, it would appear they were not given weight.
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By not giving said sensor–related limitations weight, the
determination under step one of the Alice framework that claim 1 is directed
to an abstract idea is arguably 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").
Even if we assume arguendo that the Examiner’s characterization of
what claim 1 is directed to is correct, as is the determination that what claim
1 is directed to is an abstract idea, and the sensor–related limitations
insufficiently establish an improvement in technology to integrate the
abstract idea into a practical application, claim 1 may nevertheless be
patentable–eligible if, under step one of the Alice framework, 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
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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
[0035] [0040]) 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. 11.
However, again, the sensor–related limitations as claimed are not
treated.
The Appellant responded by arguing, with respect to Alice step two,
that
The applicant submits that the Examiner has dramatically
oversimplified the proposed claims, only indicating that there is an
"additional element of using a processor", while in actuality, the claims
recite many other additional elements, such as a work vehicle having
work vehicle electronics, where the work vehicle is configured to apply
a crop input (such as nitrogen) to a target field, and if necessary to
maintain a threshold level, subsequently apply corrective amounts of
the crop input. These additional elements amount to significantly more.
Applicant also notes that as of the Board's previous consideration of
this application, the Board provided that the claim elements (as
presented at that time) were merely generic tools "for performing their
routine functions in order to collect and communication data useful in
ensuring the crop insurance program is managed." Applicant submits
that in light of the significant amendments to the claims, which add
specific structural limitations of a work vehicle, which is claimed as
applying (and if necessary correctively applying) a crop input to a target
field, the claims are no longer limited to mere data collection and
communication, nor are they limited to using a processor to merely
apply instructions using a generic computer.
Appeal Br. 27.
The Examiner did not provide a satisfactory response. The Examiner
explained, in a different context (i.e., in relation to Step 2A, Prong Two, of
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the 2019 Guidance; Ans. 6–7), that the sensor–related limitations were, inter
alia, “optional.” Id. at 7. See also Ans. 8 regarding step two where the same
“optional” point is made. But the sensor–related limitations as claimed are
not optional.
Here, it was incumbent on the Examiner to show that the sensor–
related limitations, as claimed, are 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);

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).
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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–related limitations as
claimed are 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
1–25,
27–31
101 Eligibility 1–25,
27–31

REVERSED