DETAILED ACTION
This action is in response to the amendments filed on Sept. 3rd, 2025. A summary of this action:
Claims 1, 3-6 have been presented for examination.
Claims not rejected under § 102/103. See the non-final rejection (June 2025) page 4 for the reasons why, and for conciseness those reasons are incorporated by reference herein.
Claims and drawings are objected to for informalities
Claims 1, 3-6 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement
Claims 1, 3-6 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite
Claims 1, 3-6 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea of both a mathematical concept and mental process without significantly more.
This action is Final
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments/Amendments
Regarding priority
The Examiner notes that Examiner’s do not have the ability to retrieve the certified copy with the DAS code. The Examiner suggests the applicant’s representative contact the Patent Electronics Business Center. “For questions, technical issues or troubleshooting, please contact the Patent Electronic Business Center at ebc@uspto.gov or 866-217-9197. Monday - Friday, 9 a.m. - 8 p.m. ET.” https://www.uspto.gov/patents/apply/patent-center
Regarding the objections and 112 rejection
Withdrawn in part, maintained in part, new grounds as necessitated by amendment.
With respect to the remarks, “common knowledge” as alleged cannot just be stated, it must be evidenced. MPEP § 2144.03(A): “It is never appropriate to rely solely on "common knowledge" in the art without evidentiary support in the record, as the principal evidence upon which a rejection was based. Zurko, 258 F.3d at 1385, 59 USPQ2d at 1697 ("[T]he Board cannot simply reach conclusions based on its own understanding or experience—or on its assessment of what would be basic knowledge or common sense. Rather, the Board must point to some concrete evidence in the record in support of these findings."). While the court explained that, "as an administrative tribunal the Board clearly has expertise in the subject matter over which it exercises jurisdiction," it made clear that such "expertise may provide sufficient support for conclusions [only] as to peripheral issues." Id. at 1385-86, 59 USPQ2d at 1697. As the court held in Zurko, an assessment of basic knowledge and common sense that is not based on any evidence in the record lacks substantial evidence support. Id. at 1385, 59 USPQ2d at 1697. See also Arendi v. Apple, 832 F.3d 1355, 119 USPQ2d 1822 (Fed. Cir. 2016) (finding that the Board had not provided a reasoned analysis, supported by the evidence of record, for why "common sense" taught the missing process step). See also In re Van Os, 844 F.3d 1359, 1361, 121 USPQ2d 1209, 1211 (Fed. Cir. 2017) ("Absent some articulated rationale, a finding that a combination of prior art would have been ‘common sense’ or ‘intuitive’ is no different than merely stating the combination ‘would have been obvious.’ ... Here, neither the Board nor the examiner provided any reasoning or analysis to support finding a motivation to add Gillespie's disclosure to Hawkins beyond stating it would have been an ‘intuitive way’ to initiate Hawkins’ editing mode.").”
And MPEP § 2145(I): “Arguments presented by applicant cannot take the place of evidence in the record. See In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984); In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965); In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997) ("An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness.").”
Furthermore, reliance on common knowledge does not resolve the issue the claims should expressly and explicitly recite the definitions of variables so to ensure "full, clear, concise, and exact terms” (MEPP § 608.01(m), examiner note 1 for FP 7.29.01).
Regarding the § 102/103 Rejection
Withdrawn in view of amendment incorporating subject matter previously not rejected under § 102/103.
Regarding the § 101 Rejection
Maintained, updated as necessitated by amendment.
With respect to the remarks:
Information is intangible. MPEP § 2106.03(I): “Digitech, 758 F.3d at 1348, 111 USPQ2d at 1719. Thus, the Federal Circuit has held that a product claim to an intangible collection of information, even if created by human effort, does not fall within any statutory category. Digitech, 758 F.3d at 1350, 111 USPQ2d at 1720 (claimed "device profile" comprising two sets of data did not meet any of the categories because it was neither a process nor a tangible product).” – i.e. these are merely math variables for later use in the math calculations, and receiving values of variables to calculate with an equation does not make it eligible. See In re Grams in MPEP § 2106.05(g); see Mayo in MPEP § 2106.05(d) for its measurement step, etc.
Step 7 is akin to the cutting of hair with scissors in In re Brown, in MPEP § 2106.05(g and f) as both mere instructions to “apply it” and an insignificant application of the abstract idea, wherein this includes outputting an alarm. See Parker v. Flook in MPEP § 2106.04(a)(2)(I): “Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 218, 110 USPQ2d 1976, 1981 (2014) (describing Flook as holding "that a mathematical formula for computing ‘alarm limits’ in a catalytic conversion process was also a patent-ineligible abstract idea.");” and clarified on in MPEP § 2106.04(d): “For example, in Parker v. Flook, 437 U.S. 584, 198 USPQ 193 (1978), the Supreme Court noted that the "patent application does not purport to explain how to select the appropriate margin of safety, the weighting factor, or any of the other variables" in the claimed mathematical formula, "[n]or does it purport to contain any disclosure relating to the chemical processes at work, the monitoring of process variables, or the means of setting off an alarm or adjusting an alarm system." 437 U.S. at 586, 198 USPQ at 195” – and, in a similar manner, this disclosure is entirely abstract of any discussion of step S7. See the § 112(a) rejection below to clarify.
Why? MPEP § 2106.05(g): “Parker v. Flook, 437 U.S. 584, 588-89, 198 USPQ 193, 196 (1978). In Flook, the Court reasoned that "[t]he notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula". 437 U.S. at 590; 198 USPQ at 197; Id. (holding that step of adjusting an alarm limit variable to a figure computed according to a mathematical formula was "post-solution activity").” And MPEP § 2106.05(d)(II): “Flook, 437 U.S. at 594, 198 USPQ2d at 199 (recomputing or readjusting alarm limit values);” for “The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.”
Also, in MPEP § 2106.04(d): “See, e.g., Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 80, 84, 101 USPQ2d 1961, 1968-69, 1970 (2012) (noting that the Court in Diamond v. Diehr found ‘‘the overall process patent eligible because of the way the additional steps of the process integrated the equation into the process as a whole,’’ but the Court in Gottschalk v. Benson ‘‘held that simply implementing a mathematical principle on a physical machine, namely a computer, was not a patentable application of that principle’’).
And this claim does not even require a computer, e.g. by requiring a “computer-implemented method”.
MPEP § 2111: “In re Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984); In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989) ("During patent examination the pending claims must be interpreted as broadly as their terms reasonably allow."); In re Prater, 415 F.2d 1393, 1404-05, 162 USPQ 541, 550-51 (CCPA 1969) (Claim 9 was directed to a process of analyzing data generated by mass spectrographic analysis of a gas. The process comprised selecting the data to be analyzed by subjecting the data to a mathematical manipulation. The examiner made rejections under 35 U.S.C. 101 and 35 U.S.C. 102. In the 35 U.S.C. 102 rejection, the examiner explained that the claim was anticipated by a mental process augmented by pencil and paper markings. The court agreed that the claim was not limited to using a machine to carry out the process since the claim did not explicitly set forth the machine. The court explained that "reading a claim in light of the specification, to thereby interpret limitations explicitly recited in the claim, is a quite different thing from ‘reading limitations of the specification into a claim,’ to thereby narrow the scope of the claim by implicitly adding disclosed limitations which have no express basis in the claim." The court found that applicant was advocating the latter, i.e., the impermissible importation of subject matter from the specification into the claim.)”
See the rejection below for additional clarity on how the present amendments are rejected.
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in the Peoples Republic of China on Jan. 15th, 2021. It is noted, however, that applicant has not filed a certified copy of the CN202110055626.2 application as required by 37 CFR 1.55.
Inventorship
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
The Examiner is noting this obligation because the prior art of record Hu, Weifei, et al. "A computational framework for coating fatigue analysis of wind turbine blades due to rain erosion." Renewable Energy 170 (2021): 236-250 states in its “CRediT authorship contribution statement”: “Weifei Hu: conceived the original concept, obtained the funding for the research, developed the initial research methodology, and prepared the majority of the manuscript. Weiyi Chen: conducted the majority of experiment and data analysis. Xiaobo Wang: conducted the majority of experiment and data analysis. Zhiyu Jiang: jointly supported the evolution of research goals, guided programming and data analysis, and refined the methodology. All authors jointly wrote the manuscript. Yeqing Wang: jointly supported the evolution of research goals, guided programming and data analysis, and refined the methodology. All authors jointly wrote the manuscript. Amrit Shankar Verma: jointly supported the evolution of research goals, guided programming and data analysis, and refined the methodology. All authors jointly wrote the manuscript. Julie J.E. Teuwen: jointly supported the evolution of research goals, guided programming and data analysis, and refined the methodology.”
In addition, also see Hu, W., et al. "A computational model of wind turbine blade erosion induced by raindrop impact." Journal of Physics: Conference Series. Vol. 1452. No. 1. IOP Publishing, 2020. Conference Oct. 2019 which appears to be related to the presently disclosed invention for its authorship.
As a further note, the Examiner notes MPEP § 310: “Where a Government contractor retains U.S. domestic patent rights, the contractor is under an obligation by virtue of 35 U.S.C. 202(c)(6) to include the following statement at the beginning of the application and any patents issued thereon: "This invention was made with government support under (identify the contract) awarded by (identify the Federal agency). The government has certain rights in the invention."” because Hu 2020 states: “This work is supported by the Fundamental Research Funds for the Central Universities (2019QNA4006) in China, the U.S. Department of Energy (DoE) (DE-SC0016438) and Cornell University’s Atkinson Center for a Sustainable Future (ACSF-sp2279-2018).” In its acknowledgements on page 10.
These are neither objections nor rejections, rather these are merely Examiner notes to the applicant, to ensure that the record is clear and accurate, and to ensure that such matters are timely handled during prosecution of the application.
Drawings
The originally filed drawings are objected to because the drawings are not produced with solid black lines. As such, the figures are not clearly legible, and hence are objected to. In particular, see figure 6.
Furthermore, the amendments to figure 6 are objected to because they state they amended figure 6, but no amended drawing to replace fig. 6 was actually received.
To clarify, see MPEP § 608.02(VII)(B): “B. Black And White Photographs And Grayscale Drawings Black and white photographs, including photocopies of photographs, are not ordinarily permitted in utility and design patent applications.”
Then see MPEP § 502.05(I)(K)(3):“EFS-Web supports the use of black and white, color, or grayscale images within the PDF document. However, grayscale or color images filed as "drawings - other than black and white line drawings" in a utility patent application will be electronically converted to black and white images when stored into IFW. The quality of black and white images may be degraded. To obtain sufficient quality so that all details in the images are reproducible in black and white in the eighteen-month publication and the printed patent, images should be scanned at a minimum resolution of 300 DPI. Furthermore, PAIR is only capable of displaying portrait orientation. Users should not submit landscape oriented drawings via EFS-Web because PAIR will automatically convert the image to portrait, which may cause the images to be distorted during viewing.”
See 37 CFR 1.84: (a) Drawings. There are two acceptable categories for presenting drawings in utility and design patent applications. (1) Black ink. Black and white drawings are normally required. India ink, or its equivalent that secures solid black lines, must be used for drawings;… (l) Character of lines, numbers, and letters. All drawings must be made by a process which will give them satisfactory reproduction characteristics. Every line, number, and letter must be durable, clean, black (except for color drawings), sufficiently dense and dark, and uniformly thick and well-defined. The weight of all lines and letters must be heavy enough to permit adequate reproduction. This requirement applies to all lines however fine, to shading, and to lines representing cut surfaces in sectional views. Lines and strokes of different thicknesses may be used in the same drawing where different thicknesses have a different meaning.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 1, 3-6 are objected to because of the following informalities:
In claim 1, the “D1year” is undefined. ¶¶ 49-51 use “D” to indicate a “fatigue damage”, also see ¶ 124, and the subscript “1year” is self-explanatory given the context of the equation (i.e. the fatigue damage in a 1 year period; to clarify note the summation is over “I” which are the “different rain intensities” associated with “annual rainfall”, i.e. this is a summation over the rain intensities of a 1-year period of time). The Examiner suggests amending the claim to explicitly define “D1year” in a concise manner consistent with the disclosure and context of the claims.
Step 4.11 in claim 5 was amended with the intent to cancel the prior equation for a typo (see remarks; note in the disclosure the description of S4 and S4.11, and the antecedent in the disclosure) but the prior equation was not marked as deleted in the amendment. As such, it is still recited, and the Examiner suggests deleting it.
The claims have numerous issues with antecedent basis. The Examiner suggests amending the claims such that the first recitation of each distinct element uses articles such as “a”/”an”, later recitations referring back to the same distinct element uses articles such as “the”/”said”, to use disambiguating modifiers (e.g., first, second, etc.) when there are multiple distinct elements with the same base term, and that the use of modifiers for each distinct element is kept consistent. Below is a non-exhaustive list of examples of these issues:
In claim 1, see the sub steps of step S1:
“raindrops” was previously recited but the claim does not refer back in “k of raindrops”
Similar for “estimated number of raindrops per unit volume”
The singular form of “rain intensity” is twice recited, with the later recitation not referring back to the first
“are k raindrops” does not refer back
“raindrops are uniformly distributed” does not refer back
“a blade coating area” was previously recited but does not refer back
“raindrop impact” does not refer back to “a raindrop impacting” as previously set forth
“of raindrop impact” does not refer back
“a type of raindrop” twice recited
And so on – the Examiner suggest the applicant carefully review the claims and ensure all matters of informalities for antecedent basis are corrected.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 3-6 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The dependent claims inherit the deficiencies of the claims they depend upon.
Claim 1 now recites: “S7: when the predicted blade coating fatigue life t f of the wind turbine blade is below a preset threshold, outputting a speed control command or a maintenance alarm signal about the wind turbine blade, to adjust wind turbine operating parameters or trigger maintenance operations,” – this is not sufficiently described. See ¶¶ 158-161.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 3-6 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Dependent claims inherit the deficiencies of the claims they depend upon.
Claim 1: the variable “N” is not defined in either the claims or the disclosure, rendering the claim indefinite. See ¶ 16; and ¶¶ 90-99.
Claim 1: the variable “a” is undefined. See ¶¶ 101-103. To further clarify, step S4.6 in ¶¶ 128-30 use this variable as well, however it uses it in a completely different context with a different equation, i.e. it is indefinite as to what “a” in claim 1 is supposed to be defined as. To further clarify, see claim 3, wherein this states ai is a crack length, but the “a” in claim 1 is undefined as it may, or may not be, the crack length for its use in claim 1.
Claim 5: the variable “i” in the summation in step 4.4 is undefined. ¶¶ 124-125
Claim 5: the variable “Y” is undefined.
Claim 5: the variable “aC” is undefined.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever 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, subject to the conditions and requirements of this title.
Claims 1, 3-6 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea of both a mathematical concept and mental process without significantly more.
Step 1
Claim 1 is directed towards the statutory category of a process.
Step 2A – Prong 1
The claims recite an abstract idea of both a mental process and mathematical concept.
The focus of the claimed advance is a mathematical concept of an allegedly new math calculation. See ¶ 4: “At present, the calculation of the fatigue life of the wind turbine blade coating under rain erosion is usually implemented by using stress-life curve and Miner's hypothesis of linear accumulation, but the life calculated by this method is only limited to the fatigue crack initiation period. Usually, the fatigue failure of materials will go through three stages: crack initiation, crack stable propagation and crack unstable propagation. Traditional fatigue analysis and calculation methods cannot completely calculate the fatigue life of the wind turbine blade coating.” – then ¶ 5: “Through effective modeling of natural rainfall, accurate analysis of raindrop impact stress on the wind turbine blade and comprehensive calculation of the fatigue life of the wind turbine blade coating, the fatigue life of a wind turbine blade coating due to rain erosion is accurately and effectively calculated”
Such subject matter is not eligible under § 101, without some particular additional element, or combination of additional elements, that either amount to significantly more or integrate the math concept into a practical application (MPEP § 2106.04(d): “Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 80, 84, 101 USPQ2d 1961, 1968-69, 1970 (2012) (noting that the Court in Diamond v. Diehr found ‘‘the overall process patent eligible because of the way the additional steps of the process integrated the equation into the process as a whole,’’ but the Court in Gottschalk v. Benson ‘‘held that simply implementing a mathematical principle on a physical machine, namely a computer, was not a patentable application of that principle’’)”) and the present claims lack any recitation of any meaningful additional elements.
MPEP § 2106.04(I): “The Supreme Court’s decisions make it clear that judicial exceptions need not be old or long-prevalent, and that even newly discovered or novel judicial exceptions are still exceptions. For example, the mathematical formula in Flook, the laws of nature in Mayo, and the isolated DNA in Myriad were all novel or newly discovered, but nonetheless were considered by the Supreme Court to be judicial exceptions because they were "‘basic tools of scientific and technological work’ that lie beyond the domain of patent protection." Myriad, 569 U.S. 576, 589, 106 USPQ2d at 1976, 1978 (noting that Myriad discovered the BRCA1 and BRCA1 genes and quoting Mayo, 566 U.S. 71, 101 USPQ2d at 1965); Flook, 437 U.S. at 591-92, 198 USPQ2d at 198 ("the novelty of the mathematical algorithm is not a determining factor at all"); Mayo, 566 U.S. 73-74, 78, 101 USPQ2d 1966, 1968 (noting that the claims embody the researcher's discoveries of laws of nature). The Supreme Court’s cited rationale for considering even "just discovered" judicial exceptions as exceptions stems from the concern that "without this exception, there would be considerable danger that the grant of patents would ‘tie up’ the use of such tools and thereby ‘inhibit future innovation premised upon them.’" Myriad, 569 U.S. at 589, 106 USPQ2d at 1978-79 (quoting Mayo, 566 U.S. at 86, 101 USPQ2d at 1971). See also Myriad, 569 U.S. at 591, 106 USPQ2d at 1979 ("Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry."). The Federal Circuit has also applied this principle, for example, when holding a concept of using advertising as an exchange or currency to be an abstract idea, despite the patentee’s arguments that the concept was "new". Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 714-15, 112 USPQ2d 1750, 1753-54 (Fed. Cir. 2014). Cf. Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151, 120 USPQ2d 1473, 1483 (Fed. Cir. 2016) ("a new abstract idea is still an abstract idea") (emphasis in original).”
See MPEP § 2106.04: “...In other claims, multiple abstract ideas, which may fall in the same or different groupings, or multiple laws of nature may be recited. In these cases, examiners should not parse the claim. For example, in a claim that includes a series of steps that recite mental steps as well as a mathematical calculation, an examiner should identify the claim as reciting both a mental process and a mathematical concept for Step 2A Prong One to make the analysis clear on the record.”
To clarify, see the USPTO 101 training examples, available at https://www.uspto.gov/patents/laws/examination-policy/subject-matter-eligibility.
The mathematical concept recited in claim 1 is:
Step S1 is math calculations/equations/relationships in textual form in textual form. See ¶¶ 16-32. The sub steps of S1 merely further specify the math equations to be used, and add more math calculations.
Step S2-S4 are math calculations in textual form. The recitation of using finite element analysis in step S2 is readily considered as part of the math concept itself (¶ 86: “finite element analysis calculation result”, and should it be considered an additional element this would merely be invoking a computer and commercially available software as a tool to perform the calculations – see ¶ 110: “Abaqus finite element analysis software”; also see ¶¶ 35-36.
As a point of clarify, the Examiner notes that claim 3 recites “using finite element analysis software” – i.e. under the BRI in view of claim 3’s recitation of “software” in this manner, claim 1 is differentiated from claim 3 by its omission of “software” and thus claim 1 recites a math concept for this feature, and claim 3 recites a math concept, but use a computer to do said math concept. Should it be found that the use of the computer is implicit in claim 1’s recitation (i.e. the finite element analysis in S2 is implicitly using software as a tool to do it) then the Examiner’s position is that this would be mere instructions to do math calculations using a computer as a tool with commercially available software.
Step S5 is a math calculation in textual form to establish a probability density function/probability mass function (a math relationship) - ¶ 75.
Step S6 is merely repeating the calculations, and adding more calculations, and math equations/relationships for use in calculations.
Under the broadest reasonable interpretation, the claim recites a mathematical concept – the above limitations are steps in a mathematical concept such as mathematical relationships, mathematical formulas or equations, and mathematical calculations. If a claim, under its broadest reasonable interpretation, is directed towards a mathematical concept, then it falls within the Mathematical Concepts grouping of abstract ideas. In addition, as per MPEP § 2106.04(a)(2): “It is important to note that a mathematical concept need not be expressed in mathematical symbols, because "[w]ords used in a claim operating on data to solve a problem can serve the same purpose as a formula." In re Grams, 888 F.2d 835, 837 and n.1, 12 USPQ2d 1824, 1826 and n.1 (Fed. Cir. 1989). See, e.g., SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163, 127 USPQ2d 1597, 1599 (Fed. Cir. 2018)”
See MPEP § 2106.04(a)(2).
To clarify, see the USPTO 101 training examples, available at https://www.uspto.gov/patents/laws/examination-policy/subject-matter-eligibility.
The mental process recited in claim 1 is:
Step S1 is readily a mental process, given the generality recited, one using physical aids such as pen, paper, and/or a calculator. To clarify, this conveys merely a series of simple math calculations in textual form, wherein the equations used are simple enough to be done with pen, paper, and/or a calculator. See ¶¶ 16-32. The sub steps of S1 merely further specify the math equations to be used, and add more math calculations, wherein a person is readily able to do several, if not all of these calculations, such as by using a calculator and pen and paper as aids to the mental evaluation, followed by additional mental steps such as mental judgements/evaluations/observations of observed information (e.g. classifying objects into shapes), with a simple equation to be used.
Step S5 is considered as a mental process as well, as people are readily able to mentally tabulate such information. E.g. a farmer, observing over a year and tabulating, in a notebook, the duration of each rainfall, and a mental judgment of the intensity (e.g. using a simple grading scale, such as light/medium/heavy rainfall). A person is then able to determining the probability of the occurrence of each rain intensity using such information, e.g. by tabulating the number of days over a year which had each grade of rain fall of each respective grade.
To clarify, creating PDFs of small data sets is readily a mental process – e.g. one may tabulate the flipping of a coin, and arrive at the probability of ½ for heads or tails by tabulating, over a period of time, how much the coin lands on heads or tails. Such a process is also done with a deck of cards, e.g. in card counting in Poker.
The remaining steps, but for S7, are considered mental processes for similar reasons and also given the lack of a recitation of a computer to be used in these steps. See MPEP § 2111 for In Re Prater.
S7 though still recites a mental process of a mental judgement/evaluation of comparing two numbers to each other. The “outputting” is an additional element so see prong 2 and 2B below to clarify.
Under the broadest reasonable interpretation, these limitations are process steps that cover mental processes including an observation, evaluation, judgment or opinion that could be performed in the human mind or with the aid of physical aids but for the recitation of a generic computer component. If a claim, under its broadest reasonable interpretation, covers a mental process but for the recitation of generic computer components, then it falls within the "Mental Process" grouping of abstract ideas. A person would readily be able to perform this process either mentally or with the assistance of physical aids. See MPEP § 2106.04(a)(2).
To clarify, see the USPTO 101 training examples, available at https://www.uspto.gov/patents/laws/examination-policy/subject-matter-eligibility. In particular, with respect to the physical aids, see example # 45, analysis of claim 1 under step 2A prong 1, including: “Note that even if most humans would use a physical aid (e.g., pen and paper, a slide rule, or a calculator) to help them complete the recited calculation, the use of such physical aid does not negate the mental nature of this limitation.”; also see example # 49, analysis of claim 1, under step 2A prong 1: “Moreover, the recited mathematical calculation is simple enough that it can be practically performed in the human mind. Even if most humans would use a physical aid, like a pen and paper or a calculator, to make such calculations, the use of a physical aid would not negate the mental nature of this limitation.”
As such, the claims recite an abstract idea of both a mental process and mathematical concept.
Step 2A, prong 2
The claimed invention does not recite any additional elements that integrate the judicial exception into a practical application. Refer to MPEP §2106.04(d).
The claim has no recitation of the use of a computer. See MPEP § 2111 for In Re Prater.
Should one be recited, it would merely be part of the mere instructions to invoke a computer as a tool to implement the abstract idea as discussed in MPEP § 2106.05(f).
The recitation of “using finite element analysis” as discussed above is considered as part of the abstract idea, and should it be found not to be then it would be mere instructions to do math calculations using a computer and commonplace commercially available software. See ¶ 110: “Abaqus finite element analysis software”; also see ¶¶ 35-36. It is also considered as an insignificant computer implementation as well (MPEP §2106.05(g)).
Step S7 is akin to the cutting of hair with scissors of In re Brown, as discussed in MPEP § 2106.05(g and f)), as both an insignificant application and mere instructions to “apply it”, given the generic nature of what is recited, and also as mere data transmission (insignificant extra-solution activity) for the “speed control command”, and mere data outputting as another insignificant extra-solution activity, and the like. In general, it’s just a generic listing of various insignificant extra-solution activities that are also mere instructions to “apply it” (MPEP §2106.05(f)), with no accompanying description in the specification which even describes these (see the § 112(a) above)).
To further clarify on step S7: MPEP § 2106.05(g): “Parker v. Flook, 437 U.S. 584, 588-89, 198 USPQ 193, 196 (1978). In Flook, the Court reasoned that "[t]he notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula". 437 U.S. at 590; 198 USPQ at 197; Id. (holding that step of adjusting an alarm limit variable to a figure computed according to a mathematical formula was "post-solution activity")”
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. See MPEP § 2106.04(d).
E.g. MPEP § 2106(I): “Mayo, 566 U.S. at 80, 84, 101 USPQ2dat 1969, 1971 (noting that the Court in Diamond v. Diehr found “the overall process patent eligible because of the way the additional steps of the process integrated the equation into the process as a whole,”” – and see MPEP § 2106.05(e).
The claimed invention does not recite any additional elements that integrate the judicial exception into a practical application. Refer to MPEP §2106.04(d).
Step 2B
The claimed invention does not recite any additional elements/limitations that amount to significantly more.
The claim has no recitation of the use of a computer. See MPEP § 2111 for In Re Prater.
Should one be recited, it would merely be part of the mere instructions to invoke a computer as a tool to implement the abstract idea as discussed in MPEP § 2106.05(f).
The recitation of “using finite element analysis” as discussed above is considered as part of the abstract idea, and should it be found not to be then it would be mere instructions to do math calculations using a computer and commonplace commercially available software. See ¶ 110: “Abaqus finite element analysis software”; also see ¶¶ 35-36. It is also considered as an insignificant computer implementation as well (MPEP §2106.05(g)). Also, it is WURC as its just using commercially available software as well, per ¶¶ 35-36.
Step S7 is akin to the cutting of hair with scissors of In re Brown, as discussed in MPEP § 2106.05(g and f)), as both an insignificant application and mere instructions to “apply it”, given the generic nature of what is recited, and also as mere data transmission (insignificant extra-solution activity) for the “speed control command”, and mere data outputting as another insignificant extra-solution activity, and the like. In general, it’s just a generic listing of various insignificant extra-solution activities that are also mere instructions to “apply it” (MPEP §2106.05(f)), with no accompanying description in the specification which even describes these (see the § 112(a) above)).
To further clarify on step S7: MPEP § 2106.05(g): “Parker v. Flook, 437 U.S. 584, 588-89, 198 USPQ 193, 196 (1978). In Flook, the Court reasoned that "[t]he notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula". 437 U.S. at 590; 198 USPQ at 197; Id. (holding that step of adjusting an alarm limit variable to a figure computed according to a mathematical formula was "post-solution activity")”
The claimed invention is directed towards an abstract idea of both a mathematical concept and a mental process without significantly more.
Regarding the dependent claims
Claim 3 is adding a step of mere data gathering in step S2.1 which is also considered as part of the mere instructions to do it on a computer (i.e. this is merely providing inputs to Abaqus, i.e. the software package to perform the simulations), step S2.2 is more mere data gathering followed by instructions to using a computer as a tool to perform math calculations, then do another math calculation, for similar reasons as discussed above for claim 1, step S2.3 is mere data gathering recited in a generic manner from the math calculation (i.e. this is part of the abstract idea itself as its merely obtaining calculation results; and if not then its merely an insignificant extra-solution activity of data gathering from software that is WURC in view of MPE P§ 2106.05(d)(II)), step 2.4 is merely repeating the above steps and rejected under a similar rationale, wherein 2.4 clarifies these steps are all for merely doing math calculations for various sets of gathered data
To clarify on the mere data gathering being WURC, see Amirzadeh, B., et al. "A computational framework for the analysis of rain-induced erosion in wind turbine blades, part II: Drop impact-induced stresses and blade coating fatigue life." Journal of Wind Engineering and Industrial Aerodynamics 163 (2017): 44-54. § 2.1 which discusses its use of ABAQUS and the data gathering for its use. In a similar vein, see Hu, Weifei, et al. "A computational framework for coating fatigue analysis of wind turbine blades due to rain erosion." Renewable Energy 170 (2021): 236-250. § 3; as well as Hu, W., et al. "A computational model of wind turbine blade erosion induced by raindrop impact." Journal of Physics: Conference Series. Vol. 1452. No. 1. IOP Publishing, 2020. § 3 and § 3.1
Claim 4 is in 3.1 adding a mental process of a mental drawing – e.g. a person gathers the requisite data by mental observation, then draws a circle (a compass or protractor may be a useful aid in this process, along with the pen and paper) of a particular diameter/radius. A person is readily able to do this repeatedly, e.g. for a plurality of rain drop with different diameters, draw a figure akin to a dart board with multiple rings in the circle.
3.2 is merely adding a mental judgement of the choosing, and a mental evaluating of the searching – a person is readily able to search records, and in this case it is merely specifying that the records are form the results of the prior calculations
3.3 is merely repeating the above mental steps, and adding in a math calculation to it
Claim 5:
4.1 is a mental judgement of selecting, followed by using the abstract idea recited in claim 1 to do a math calculation
4.2 is a mental judgement of the selecting, and the “splitting” of a curve into multiple curves is considered as both a math concept and a mental process, e.g. a person mentally sub-dividing a curve into sub curves using pen and paper to divide the curves, or using math calculations to do such a process (e.g. calculating portions of the stress curve with a constant amplitude by calculating the amplitude in a piecemeal fashion for each part of the curve, then splitting the data for segments with constant amplitude)
4.3 – math calculations with math equations in textual and mathematical form
4.4 – repeating the math calculations, then another math equation is recited for use in the math calculations
4.5 – repeating the abstract idea steps above, and adding more math calculations/equations
4.6 – more math calculations with more equations
4.7 – repeating the math calculations
4..8 – a mental judgment, which is also a math calculation/relationship of comparing one value to another to determine which is larger
4.9 – repeating the abstract idea as discussed above, and adding another math equation to it
4.10 – more math calculations and equations
4.11 – similar as above, its another math calculation
4.21 – repeating the math calculations to do another math calculation, and the ranking is considered as both a mental process (a person mentally ranking data by a series of mental judgements, such as with pen and paper and a tabular form of the data) as well as a math ranking in textual form (84th percentile conveys calculating a value from a distribution, akin to students taking tests and finding out that they mathematically rank in the 95% percentile, as in the top 5 % of all test takers as mathematically calculated using basic statistical math)
Claim 6 – the obtaining is a mental process of collecting information by mental observation given its generality (if not, mere data gathering as a token pre-solution activity that is WURC in view of MPEP §2106.05(d) as no particular means or tool is recited in how the data is to be gathered); followed by “statistically processing…and obtaining…” which is considered as both a mental process and a math concept of math calculations in textual form. For WURC evidence, also see Amirzadeh, Behrooz, et al. "A computational framework for the analysis of rain-induced erosion in wind turbine blades, part I: Stochastic rain texture model and drop impact simulations." Journal of Wind Engineering and Industrial Aerodynamics 163 (2017): 33-43. Page 34, last paragraph: “We begin by looking at the rainfall history in the wind turbine location. Specifically, the probability mass of all possible rain intensities is calculated by averaging over a number of annual rain intensity-duration graphs. Subsequently, a rain texture model is developed that allows for the transformation of the rain intensity values into three dimensional fields of raindrops” – then see § 2, then see § 2.1 including: “One of the most common ways to present rainfall data is in the form of the rain intensity-duration… The average annual rain scenario to be used in a wind turbine blade erosion study, better be calculated from a timespan which is comparable to this lifetime. Finally, the availability of data for the location of interest is also an important factor. In the current study, the rainfall data for the city of New Bedford between the years 1992 and 2000 is used. The data is provided by NOAA's National Climatic Data Center (NCDC) (National Oceanic and Atmospheric Administration, 2013). The probability mass function of the combined data for the 9-year timespan is shown in Fig. 4.” – and then see § 2.3. This reference was adopted by the instant inventive entity for its rain field simulation -see Hu et al., “A computational model of wind turbine blade erosion induced by raindrop impact” 2019, § 2 ¶ 2; and Hu et al., “A computational framework for coating fatigue analysis of wind turbine blades due to rain erosion”, 2021, § 2.1 for its discussion of reference 5
The claimed invention is directed towards an abstract idea of both a mathematical concept and a mental process without significantly more.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/David A Hopkins/Primary Examiner, Art Unit 2188
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