Ex Parte Chen et al

Patent Trial and Appeal Board

Jun 27, 2018

13381555 (P.T.A.B. Jun. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/381,555
99701 7590
Howard L. Speight
742 Central A venue
Napa, CA 94558
FILING DATE FIRST NAMED INVENTOR
12/29/2011 Dingding Chen
06/29/2018
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
001001.2009-IP-23883 US 4793
EXAMINER
CRAIG, DWIN M
ART UNIT PAPER NUMBER
2123
NOTIFICATION DATE DELIVERY MODE
06/29/2018 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):
howard@hspeight.com
darry 1 @hspeight.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DINGDING CHEN, SYED HAMID, and
MICHAEL CHARLES DIX
Appeal2018-001290
Application 13/381,555 1
Technology Center 2100
Before HUNG H. BUI, NABEEL U. KHAN, and
MICHAEL J. ENGLE, Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Office Action rejecting claims 3 and 7, which are all the
claims pending in the application. Claims App 'x. We have jurisdiction
under 35 U.S.C. § 6(b ).
WeAFFIRM. 2
1 According to Appellants, the real party in interest is Halliburton Energy
Services, Inc. App. Br. 1.
2 Our Decision refers to Appellants' Appeal Brief filed February 26, 2015
("App. Br."); Reply Brief filed September 3, 2015 ("Reply Br.");
Examiner's Answer mailed July 7, 2015 ("Ans."); Final Office Action
mailed September 19, 2014 ("Final Act."); and original Specification filed
December 29, 2011 ("Spec.").
Appeal2018-001290
Application 13/381,555
STATEMENT OF THE CASE
Appellants' invention relates to "a system for estimating mineral
content using geochemical data." Spec. i-f 3, Fig. 2. According to
Appellants,
[a] model [shown in Figure 2] ... includes [1] an intelligent
linear programming ('ILP') member to produce a ILP result,
[2] a member selected from the group consisting of [A] a feed-
forward neural network ('FNN') to produce a FNN result and
[BJ a geochemical nonnative analysis ('GNA') model to produce
a GNA result. The model also includes a result generator to
combine [ 1] the ILP result with [2] the result from the other
member to produce the estimates of the mineral content of the
sample [taken from one or more locations in a well].
Abstract.
Appellants' Figure 2 is reproduced below with additional markings
for illustration:
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Appellants' Figure 2 shows a processor provided with a model to estimate
mineral content using geochemical data.
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Appeal2018-001290
Application 13/381,555
Claims 3 and 7-the only claims pending on appeal-are illustrative
of the claimed subject matter, and are reproduced below:
3. A computer-based method to optimize the mineral content
prediction of training samples for candidate model development
usmg geochemical inputs through linear programmmg
compnsmg:
initiating a plurality of transformation matrices from
geochemical data to mineral content;
a processor running linear programming on each
transformation matrix to calculate the error between the
measured mineral content of the training samples and the
estimated mineral content by applying that transformation matrix
to geochemical data collected from training samples;
updating a plurality of transformation matrices iteratively
based on the ranked mineral prediction errors in the previous
generation of transformation matrices by using one or more
genetic operators until a stop criterion is reached wherein the stop
criterion is reached upon occurrence of a condition selected from
the group consisting of when the mineral prediction error on the
training samples are minimized through evolutionary
optimization, when a monitored prediction error on other
samples begins to increase, and when the number of times the
plurality of transformation matrices is updated reaches a
threshold number; and
using the ranked final transformation matrices as parts of
member model candidates for ensemble construction.
App. Br. 15 (Claims App'x.)
7. A method to optimize an ensemble construction with
members developed with intelligent linear programming
("ILPBU"), feed-forward neural network ("FNN"), and
geochemical normative analysis ("GNA") modeling comprising:
generating a plurality of candidate members with each
modeling method using training samples from a well in a field;
initiating a plurality of ensembles with fixed number of
candidate members in each ensemble;
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Application 13/381,555
calculating for each ensemble the ensemble prediction
error between the actually measured mineral content of
validation samples and the estimated mineral content provided
by an ensemble predictor which is selected from a group of
averages consisting of an arithmetic average or a weighted
average over the candidate member predictions;
updating a plurality of the ensemble candidates iteratively
based on ranked mineral prediction errors in the previous
generation of ensembles by using one or more genetic operators
until a stop condition is reached when the mineral prediction
errors on the validation data set are minimized through
evolutionary optimization; and
applying the ranked final ensembles as multiple solutions
of intelligent mineral modeling to offset wells in the same field
with similar mineral content in formations.
App. Br. 16 (Claims App'x.)
EXAMINER'S REJECTION
Claims 3 and 7 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject. Final Act. 4.
ANALYSIS
§ 101 Rejection of Claims 3 and 7
Patent eligibility is a question of law that is reviewable de nova.
Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333 (Fed. Cir. 2012). The
Supreme Court has long held that "[l]aws of nature, natural phenomena, and
abstract ideas are not patentable." Alice Corp. Pty. Ltd. v. CLS Bank Int 'l,
134 S. Ct. 2347, 2354 (2014). The "abstract ideas" category embodies the
longstanding rule that an idea, by itself, is not patentable. Alice, 134 S. Ct.
at 2355 (quoting Gottschalkv. Benson, 409 U.S. 63, 67 (1972)).
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Application 13/381,555
In Alice, the Supreme Court reiterates an analytical two-step
framework previously set forth in Mayo Collaborative Services v.
Prometheus Laboratories, Inc., 566 U.S. 66, 79 (2012), "for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts." Id. at
2355. The first step in the analysis is to "determine whether the claims at
issue are directed to one of those patent-ineligible concepts," such as an
abstract idea. Id. If the claims are directed to eligible subject matter, the
inquiry ends. Thales Visionix Inc. v. United States, 850 F.3d 1343, 1349
(Fed. Cir. 2017); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed.
Cir. 2016). If the claims are directed to a patent-ineligible concept, the
second step in the analysis is to consider the elements of the claims
"individually and 'as an ordered combination'" to determine whether there
are additional elements that "'transform the nature of the claim' into a
patent-eligible application." Alice, 134 S. Ct. at 2355 (citing Mayo, 566 U.S.
at 79, 78). In other words, the second step is to "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."' Id. (citing Mayo, 566 U.S. at 72-73).
In rejecting independent claims 3 and 7 under 35 U.S.C. § 101, the
Examiner determines these claims are directed to an abstract idea of
organizing information through mathematical correlations and algorithms
akin to those discussed in Digitech, Benson, and Flook. Final Act. 5-7
(citing Digitech Image Techs., LLC v. Elecs.for Imaging, Inc., 758 F.3d
1344 (Fed. Cir. 2014); Gottschalkv. Benson, 409 U.S. 63 (1972); Parker v.
Flook, 437 U.S. 584 (1978)); see also Ans. 41. The Examiner also
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determines the additional elements in the claims do not amount to
significantly more than the judicial exception, because "the calculation and
performance, in an algorithmic manner, including performing comparisons
and then through the use of an algorithm" are performed on a general
purpose computer. Final Act. 7-8. According to the Examiner, "[t]here is
no transformation involved in these claims, [and] there is no improvement to
the functioning of the computer itself." Id. at 8.
Alice/Mayo--Step 1
Turning now to the first step of the Alice inquiry, Appellants contend
the claims are not directed to an abstract idea under the Enfish analysis.
App. Br. 4--8. In particular, Appellants argue "the instant claims are not
simply directed to any form of a model for estimating mineralogy, but
instead are specifically directed to ' [a Jn improved mineralogy estimating
technique [that] uses an intelligent linear-programming method which
allows model weighting coefficients to be optimized automatically through
evolutionary computation."' App. Br. 4--7 (citing Spec. i-f 10). According to
Appellants,
Claim 3 provides a detailed recitation of a particular way to
achieve the desired outcome of"optimiz[ing] the mineral content
prediction of training samples for candidate model development
using geochemical inputs through linear programming."
[Likewise] Claim 7 provides a detailed recitation of a particular
way to achieve the desired outcome of "optimiz[ing] an
ensemble construction with members developed with intelligent
linear programming ("ILPBU"), feed-forward neural network
("FNN"), and geochemical normative analysis ("GNA")
modeling."
App. Br. 8.
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Appellants further argue "Claims 3 and 7, like the claims in Enfish,
describe software to make better use of computer hardware" and, as such,
should be patent-eligible under 35 U.S.C. § 101. App. Br. 8-11.
Appellants' arguments are not persuasive. At the outset, we note
Appellants' reliance on Enfish is misplaced. In Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327 (Fed. Cir. 2016), the claims were directed to an
improved database architecture, i.e., a self-referential table - "a specific
type of data structure designed to improve the way a computer stores and
retrieves data in memory." Such a data structure has several distinct
advantages over conventional relational databases, including: (1) faster
searching of data than would be possible with the conventional relational
model (see U.S. Patent No. 6,151,604 "Enfish '604 patent," 1:55-59, 2:66-
3:6); (2) more effective storage of data other than structured text, such as
storage of images and unstructured text ('604 patent, 2:16-22, 2:46-52); and
(3) more flexibility in configuring the database ('604 patent, 2:27-29).
In Enfish, the Federal Circuit interpreted Alice step 1 as asking
"whether the claims are directed to an improvement to computer
functionality versus being directed to an abstract idea." Enfish, 822 F.3d at
1336. "[T]he focus of the claims is on the specific asserted improvement in
computer capabilities (i.e., the self-referential table for a computer
database)." Id. Based on the "plain focus of the claims," the Federal Circuit
reached the conclusion that Enfish 's claims were directed to "a specific
improvement to the way computers operate, embodied in the self-referential
table," and, as such, were more than a mere abstract idea. Id. Because the
Federal Circuit found step 1 of the Alice two-step analysis was satisfied,
Alice step 2 was not required. Id.
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In contrast to Enfzsh, Appellants' claim 3 is directed to an abstract
concept of optimizing the mineral content prediction of training samples for
model candidates for ensemble construction using geochemical inputs, via a
processor running linear programming on transformation matrices. All the
steps recited in Appellants' claim 3, including for example ( 1) "running
linear programming on each transformation matrix to calculate the error
between the measured mineral content of the training samples and the
estimated mineral content"; (2) "updating a plurality of transformation
matrices iteratively based on the ranked mineral prediction errors in the
previous generation of transformation matrices by using one or more genetic
operators until a stop criterion is reached"; and (3) "using the ranked final
transformation matrices as parts of member model candidates for ensemble
construction" are abstract processes of collecting, storing, and analyzing
information of a specific content (i.e., geochemical data) using a linear
programming algorithm and transformation matrices. Likewise, Appellants'
claim 7 is directed to an abstract concept of optimizing an ensemble
construction of candidate members developed with multiple solutions of
intelligent linear programming ("ILPBU"), feed-forward neural network
("FNN"), and geochemical normative analysis ("GNA") modeling of the
same information.
Information as such is intangible, and data analysis and algorithms are
abstract ideas. See, e.g., Microsoft Corp. v. AT & T Corp., 550 U.S. 437,
451 n.12 (2007); Alice, 134 S. Ct. at 2355; Parker v. Flook, 437 U.S. 584,
589, 594--95 (1978) ("Reasoning that an algorithm, or mathematical
formula, is like a law of nature, Benson applied the established rule that a
law of nature cannot be the subject of a patent"); Gottschalk v. Benson, 409
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U.S. 63, 71-72 (1972). Information collection and analysis, including when
limited to particular content, is within the realm of abstract ideas. See, e.g.,
Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1349 (Fed.
Cir. 2015); Digitech, 758 F.3d at 1351; CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011). That is, "[w]ithout
additional limitations, a process that employs mathematical algorithms to
manipulate existing information to generate additional information is not
patent eligible." Digitech, 758 F.3d at 1349-50 ("Data in its ethereal,
non-physical form is simply information that does not fall under any of the
categories of eligible subject matter under section 101 ").
As correctly recognized by the Examiner, Appellants' claims 3 and 7
"do not improve the computer hardware or software." Ans. 4. Likewise,
"Appellants' claimed algorithm [transforming matrices and computing
ensembles] does not ... impact the functioning of the host computer" and
"does not require any specialized computer hardware" and, as such, "does
not make better use of the computer hardware" or "provide any
improvement to the computer functioning for any software programs on the
computer." Ans. 4--5; see Enfish, 822 F.3d at 1336. Appellants'
Specification and arguments do not demonstrate the claims "improve the
way a computer stores and retrieves data in memory," as the claims in Enfish
did via a "self-referential table for a computer database." See Enfish, 822
F.3d at 1336, 1339.
In fact, none of the steps recited in Appellants' claims 3 and 7
provide, and nowhere in Appellants' Specification is there any description or
explanation as to how these data manipulation steps are intended to provide:
(1) a "solution ... necessarily rooted in computer technology in order to
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overcome a problem specifically arising in the realm of computer networks,"
as explained by the Federal Circuit in DDR Holdings, LLC v. Hotels.com,
L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014); (2) "a specific improvement to
the way computers operate," as explained in Enfzsh, 822 F.3d at 1336; or
(3) an "unconventional technological solution ... to a technological
problem" that "improve[ s] the performance of the system itself," as
explained in Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841F.3d1288,
1302 (Fed. Cir. 2016).
Accordingly, we agree with the Examiner that claims 3 and 7 are
directed to the abstract idea of manipulating data through mathematical
relationships, which is similar to the image data processing discussed in
Digitech, and converting numerical representation in Benson. See Digitech,
758 F.3d at 1350 ("Data in its ethereal, non-physical form is simply
information that does not fall under any of the categories of eligible subject
matter under section 101. ").
Alice/Mayo--Step 2
In the second step of the Alice inquiry, Appellants argue their "claims
contain an 'inventive concept' sufficient to 'transform the nature of the
claim into a patent-eligible application."' App. Br. 11-13. According to
Appellants, "the claims satisfy step 2 of the Alice analysis because the Final
Office Action did not raise any prior art rejections." App. Br. 11; Reply Br.
3-5.
We disagree. At the outset, we note (1) "the concept of inventiveness
is distinct from that of novelty"; and (2) "[t]he inventiveness inquiry of
§ 101 should therefore not be confused with the separate novelty inquiry of
§ 102 or the obviousness inquiry of§ 103." Amdocs, 841 F.3d at 1312.
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Under current Federal Circuit precedent, an "inventive concept" under Alice
step 2 can be established by showing, for example, that the patent claims:
(1) provide a technical solution to a technical problem unique,
e.g., a "solution [] necessarily rooted in computer technology in order
to overcome a problem specifically arising in the realm of computer
networks" (see DDR, 773 F.3d at 1257);
(2) transform the abstract idea into "a particular, practical
application of that abstract idea," e.g., "installation of a filtering tool at
a specific location, remote from the end-users, with customizable
filtering features specific to each end user" (see Bascom, 827 F.3d at
1350); or
(3) "entail[] an unconventional solution ([e.g.,] enhancing
data in a distributed fashion) to a technological problem ([e.g.,] massive
record flows which previously required massive databases)" and
"improve the performance of the system itself' (see Amdocs, 841 F .3d
at 1302).
In this case, however, we find no element or combination of elements
recited in Appellants' claims 3 and 7 that contains any "inventive concept"
and adds anything "significantly more" to transform the abstract concept
(i.e., manipulating data through mathematical relationships) into a patent-
eligible application. Alice, 134 S. Ct. at 2357. As discussed supra, we are
not persuaded the added computer elements such as the processor and
matrices can transform the abstract idea into a patent eligible invention. As
our reviewing court has observed: "[A ]fter Alice, there can remain no doubt:
recitation of generic computer limitations does not make an otherwise
ineligible claim patent-eligible." DDR Holdings, 773 F.3d at 1256 (citing
Alice Corp., 134 S. Ct. at 2358)).
Because Appellants' claims 3 and 7 are directed to a patent-ineligible
abstract concept and do not recite something "significantly more" under the
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second prong of the Alice analysis, we sustain the Examiner's rejection of
these claims under 35 U.S.C. § 101.
CONCLUSION
On the record before us, we conclude Appellants have not
demonstrated the Examiner erred in rejecting claims 3 and 7 under 35 U.S.C.
§ 101.
DECISION
As such, we AFFIRM the Examiner's final rejection of claims 3 and
7.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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