Vehicle Intelligence and Safety LLC v. Mercedes-Benz USA, LLC, --- F.Supp.3d ---- (2015)
`2015 WL 394273
`
`2015 WL 394273
`Only the Westlaw citation is currently available.
`United States District Court,
`N.D. Illinois, Eastern Division.
`
`Vehicle Intelligence and Safety
`LLC, Plaintiff–Counterdefendant,
`v.
`Mercedes–Benz USA, LLC and Daimler
`AG, Defendants–Counterplaintiffs.
`
`No. 13 C 4417 | Signed January 29, 2015
`
`Synopsis
`Background: Patentee
`filed suit against automobile
`manufacturer, claiming infringement of patent directed
`to expert safety screening of equipment operators for
`impairments. Manufacturer moved
`for
`judgment on
`pleadings.
`
`[Holding:] The District Court, William T. Hart, J., held that
`patent was invalid as abstract idea ineligible to be patented.
`
`Motion granted.
`
`West Headnotes (9)
`
`[1]
`
`Patents
`Evidence
`
`On a motion for judgment on the pleadings
`challenging patent eligibility, ineligibility must
`be shown by clear and convincing evidence
`appearing in the patent. Fed. R. Civ. P. 12(c).
`
`Cases that cite this headnote
`
`[2]
`
`Patents
`Presumption of correctness in general
`Patents
`Degree of proof
`
`Every patent is presumed to be issued properly,
`absent clear and convincing evidence to the
`contrary.
`
`Cases that cite this headnote
`
`[3]
`
`Patents
`Laws of nature, natural phenomena, and
`abstract ideas; fundamental principles
`
`There are three narrow exceptions to statutory
`patent eligibility: laws of nature, physical
`phenomena, and abstract ideas. 35 U.S.C.A. §
`101.
`
`Cases that cite this headnote
`
`[4]
`
`Patents
`Laws of nature, natural phenomena, and
`abstract ideas; fundamental principles
`
`idea
`To overcome a charge of abstract
`preemption from statutory patent eligibility,
`it must appear
`that
`the
`invention's claim
`limitations reflect an inventive concept that adds
`significantly to, and limits, the expanse of any
`abstract idea. 35 U.S.C.A. § 101.
`
`Cases that cite this headnote
`
`[5]
`
`Patents
`Laws of nature, natural phenomena, and
`abstract ideas; fundamental principles
`
`A two-part framework applies to all contentions
`that patents embody abstract ideas ineligible
`for patent protection: (1) it must be determined
`whether the patent is directed to an abstract
`idea, and (2) it must be determined whether any
`element, or combination of elements, in the claim
`is sufficient to ensure that the claim contains
`an inventive concept amounting to significantly
`more than the abstract idea itself, that is, more
`than an instruction to apply the abstract idea. 35
`U.S.C.A. § 101.
`
`Cases that cite this headnote
`
`[6]
`
`Patents
`Laws of nature, natural phenomena, and
`abstract ideas; fundamental principles
`
`to expert safety screening
`Patent directed
`of equipment operators for impairments was
`invalid, as ineligible for patent protection, since
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
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`
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`

`
`Vehicle Intelligence and Safety LLC v. Mercedes-Benz USA, LLC, --- F.Supp.3d ---- (2015)
`2015 WL 394273
`
`claims qualified as abstract idea by broadly
`relating to concept of testing operators of
`any kind of moving equipment for any kind
`of physical or mental impairment and lacked
`inventive concept sufficient to confer patent
`eligibility. 35 U.S.C.A. § 101.
`
`1 Cases that cite this headnote
`
`[7]
`
`Patents
`Use or operation of machine or apparatus as
`affecting process; ‘machine or transformation‘
`test
`
`An abstract idea does not become patent-eligible
`by specifying that a computer can be used to
`implement the idea. 35 U.S.C.A. § 101.
`
`Cases that cite this headnote
`
`[8]
`
`Patents
`In general; utility
`
`US Patent 7,394,392. Invalid.
`
`Cases that cite this headnote
`
`[9]
`
`Patents
`In general; utility
`
`US Patent 4,738,333, US Patent 6,748,301, US
`Patent 6,886,653. Cited as Prior Art.
`
`Cases that cite this headnote
`
`Attorneys and Law Firms
`
`Anthony G. Simon, Michael P. Kella, Timothy Krieger,
`Benjamin R. Askew, The Simon Law Firm, P.C., St. Louis,
`MO, Aaron Ward Purser, Innovalaw, P.C., Joseph Paul
`Oldaker, Timothy E. Grochocinski, Nelson Bumgardner,
`P.C., Orland Park, IL, for Plaintiff–Counterdefendant.
`
`Jonathan Richard Defosse, Scott W. Doyle, Shearman &
`Sterling LLP, Washington, DC, Kara Eve Foster Cenar,
`Mariangela M. Seale, Bryan Cave LLP, Chicago, IL, for
`Defendants–Counterplaintiffs.
`
`OPINION AND ORDER
`
`William T. Hart, UNITED STATES DISTRICT JUDGE
`
`*1 Plaintiff Vehicle Intelligence and Safety LLC (“VIS”)
`brings this action against Mercedes–Benz USA, LLC
`and Daimler AG (collectively “defendants”) charging
`infringement of United States Patent No. 7,394,392 entitled
`“Expert Safety Screening of Equipment Operators (“the ′392
`patent”) issued July 1, 2008.
`
`The case is now before the court on defendants' second
`Rule12(c) motion for judgment on the pleadings. A
`previous motion for judgment on the pleadings was
`denied without prejudice to being renewed after conducting
`term-construction proceedings in accord with Markman v.
`Westview Instruments, Inc., 52 F.3d 967 (Fed.Cir.1995).
`SeeVehicle Intelligence & Safety LLC v. Mercedes–Benz
`USA, LLC, 2014 WL 983123 (N.D.Ill. March 13, 2014).
`After term-construction proceedings, an order was entered
`resolving claim construction issues. SeeVehicle Intelligence
`& Safety LLC v. Mercedes–Benz USA, LLC, 2014 WL
`4652563 (N.D.Ill. Sept. 18, 2014) (“VIS II ”). Defendants now
`renew their motion for judgment on the pleadings contending
`that the ′392 patent is based on an abstract idea and that the
`claims do not contain an “inventive concept” sufficient to
`confer patent eligibility pursuant to 35 U.S.C. § 101.
`
`The ′392 Patent Abstract is as follows:
`
`Methods and systems using one
`or more expert systems to screen
`equipment operators for impairments,
`such
`as
`intoxication,
`physical
`impairment, medical
`impairment,
`or
`emotional
`impairment,
`to
`selectively
`test
`the
`equipment
`operators and control the equipment
`(e.g., automobiles, trucks, industrial
`vehicles,
`public
`transportation
`vehicles, such as buses, subways,
`trains, planes,
`and
`ships,
`and
`dangerous machinery in general) if
`impairment of the equipment operator
`is determined. One embodiment is
`a method to screen an equipment
`operator
`for
`intoxication, using
`one
`or more
`expert
`systems.
`
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`Vehicle Intelligence and Safety LLC v. Mercedes-Benz USA, LLC, --- F.Supp.3d ---- (2015)
`2015 WL 394273
`
`a
`is
`embodiment
`second
`A
`method
`to screen an equipment
`operator for
`impairment, such as
`intoxication, physical
`impairment,
`medical
`impairment, or emotional
`impairment, using one or more
`expert systems. A third embodiment
`is an equipment operator screening
`system to determine impairment, such
`as intoxication, physical impairment,
`medical
`impairment, or emotional
`impairment, using one or more expert
`systems.
`
`The ′392 Patent does not invent impairment detection
`methods or devices. The patent discloses eleven prior
`art patents for impairment detection systems which are
`incorporated by reference. The patent acknowledges that the
`prior art patents have been issued to detect driver impairment.
`Cols. 1–3. Many of these patents are linked to locking systems
`that prevent vehicle operation unless the operator passes a
`breath analyzer, voice analyzer, and/or skin sensor test. Cols.
`1–2 (describing U.S. Patent Nos. 6,886,653; 6,748,301, &
`4,738,333).
`
`The Amended Complaint alleges that defendants have
`directly infringed at least claim 8 of the ′392 Patent by selling
`each Mercedes–Benz vehicle that incorporates a feature of the
`vehicle referred to as ATTENTION ASSIST.
`
`*2 Claim 8 of the ′392 Patent is an exemplary claim. It is
`as follows:
`
`A method to screen an equipment operator for impairment,
`comprising:
`
`screening an equipment operator by one or more expert
`systems to detect potential impairment of said equipment
`operator;
`
`selectively testing said equipment operator when said
`screening of said equipment operator detects potential
`impairment of said equipment operator; and
`
`controlling operation of said equipment if said selective
`testing of said equipment operator indicates said
`impairment of said equipment operator, wherein said
`screening of said equipment operator includes a time-
`sharing allocation of at least one processor executing at
`least one expert system.
`
`Col. 15, ll. 30–43.
`
`The description of the preferred embodiments includes:
`
`invention
`the
`of
`Embodiments
`can be
`implemented by utilizing
`combinations of one or more modules
`(e.g., using all of a module, or
`using a portion of a module) already
`existing in the equipment as standard
`features. For example, in a typical
`vehicle there is an operations module
`(e.g., an equipment operations module
`allowing the equipment operator to
`determine one or more functions of
`equipment, such as speed of operation
`and direction of movement), an audio
`module (e.g., a sound entertainment
`module, or a communication module),
`a navigation module (e.g., a map
`display module), an anti-theft module
`(e.g., a motion detector module),
`and a climate control module (e.g.,
`an air-conditioning module). Many
`of
`these modules have become
`very sophisticated in their operator
`interfaces and in their convenience
`to the equipment operator. These
`existing modules also can provide
`useful information on past and/or
`current operator actions to assist in
`the process of determining whether the
`equipment operator is truly impaired
`or not impaired.
`
`Col. 6, ll. 33–49.
`
`Additional descriptive data is as follows:
`
`Embodiments of the invention can be
`constructed using one or more data
`processing systems already existing in
`the equipment modules listed above,
`in a time-sharing allocation of their
`available processors and memory.
`Such existing equipment modules
`frequently have some unused memory
`and unused processor time available
`after performing their existing module
`
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`
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`
`functions. Alternatively, one or more
`additional data processing systems
`(e.g., based on any commercially
`available microprocessor of any
`word bit width and clock speed,
`a control Read–Only–Memory, or
`a data processing equivalent) can
`be dedicated
`to combining
`the
`information gathered from one or more
`modules listed above, or disclosed by
`one or more of the prior art patents
`incorporated by reference.
`
`Col. 7, ll. 9–22.
`
` [2] A Rule 12(c) motion for judgment on the pleadings
`[1]
`challenging patent eligibility must be shown by clear and
`convincing evidence appearing in the patent. Every patent is
`presumed to be issued properly, absent clear and convincing
`evidence to the contrary. SeeMicrosoft Corp. v. i4i Ltd. P'ship,
`––– U.S. ––––, 131 S.Ct. 2238, 2242, 180 L.Ed.2d 131
`(2011); CLS Bank Int'l v. Alice Corp., 717 F.3d 1269, 1304–
`05 (Fed.Cir.2013) (en banc ), aff'd,––– U.S. ––––, 134 S.Ct.
`2347, 189 L.Ed.2d 296 (2014).
`
` [4] To be patent eligible, a claimed invention must
`*3 [3]
`be a “new and useful process, machine, manufacture, or
`composition of matter, or any new and useful improvement
`thereof.” 35 U.S.C. § 101. The Supreme Court has held
`that there are three narrow exceptions to statutory patent
`eligibility: “laws of nature, physical phenomena, and abstract
`ideas.” Bilski v. Kappos, 561 U.S. 593, 601, 130 S.Ct. 3218,
`177 L.Ed.2d 792 (2010) (quoting Diamond v. Chakrabarty,
`447 U.S. 303, 308, 100 S.Ct. 2204, 65 L.Ed.2d 144
`(1980)). To overcome a charge of abstract idea preemption
`it must appear that the claim limitations reflect an “inventive
`concept” that adds significantly to, and limits, the expanse of
`any abstract idea. Mayo Collaborative Serv. v. Prometheus
`Labs., Inc., ––– U.S. ––––, 132 S.Ct. 1289, 1293–94, 182
`L.Ed.2d 321 (2012).
`
`[5] The Supreme Court held in Alice Corp., 134 S.Ct. at
`2355, that the two-part framework set forth in Mayo applies to
`all contentions that patents embody ineligible, abstract ideas
`contrary to § 101. First, it must be determined whether the
`patent is directed to an abstract idea, and, second, it must be
`determined whether any element, or combination of elements,
`in the claim is sufficient to ensure that the claim amounts to
`significantly more than the abstract idea itself—more than an
`
`instruction to apply the abstract idea. This has been referred
`to as an inventive concept.
`
`Abstract ideas are excluded from eligibility based on the
`concern that monopolization of the basic tools of scientific
`and technological work could impede innovation more than
`promote it. Abstract ideas referred to in Alice Corp., 134 S.Ct.
`at 2350, include: fundamental economic practices instructing
`how to hedge a risk, citing Bilski, 561 U.S. at 599, 130
`S.Ct. 3218; an algorithm code for converting binary-coded
`numerals to pure binary form, citing Gottschalk v. Benson,
`409 U.S. 63, 67, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972); and
`a mathematical formula for computing alarm limits in a
`catalytic conversion process, citing Parker v. Flook, 437 U.S.
`584, 594–595, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978).
`
`Limitations that may be enough to qualify as significantly
`more or to embody an inventive concept were said to be
`improvements to another technology or technical field or
`improvements to the functioning of a computer. Alice Corp.,
`134 S.Ct. at 2359–60. However, requiring no more than
`a generic computer to perform generic computer functions
`that are well-understood activities previously know to the
`computer industry would not be sufficient. Id. at 2359 (citing
`Mayo, 132 S.Ct. at 1297, 1301).
`
`[6] The claims in this case broadly relate to the concept
`of testing operators of any kind of moving equipment for
`any kind of physical or mental impairment. This concept
`qualifies as an abstract idea within the meaning of the
`cited Supreme Court precedents as well as Federal Circuit
`precedents. SeeDealertrack, Inc. v. Huber, 674 F.3d 1315,
`1333 (Fed.Cir.2012) (processing information through a
`clearinghouse); Digitech Image Techs., LLC v. Electronics
`for Imaging, Inc., 758 F.3d 1344, 1350 (Fed.Cir.2014)
`(creating an electronic profile); Planet Bingo, LLC v.
`VKGS LLC, 576 Fed.Appx. 1005, 1007–08 (Fed Cir.2014)
`(computer-aided management of multiple sets of bingo
`numbers).
`
`The Federal Circuit has also held that methods “which
`can be performed entirely in the human mind” are abstract
`ideas. CyberSource Corp. v. Retail Decisions, Inc., 654
`F.3d 1366, 1373 (Fed Cir.2011) (verifying the validity
`of credit card transactions). See alsoSmartGene, Inc. v.
`Advanced Biological Labs., SA, 555 Fed.Appx. 950, 954–
`55 (Fed.Cir.), cert. denied,––– U.S. ––––, 135 S.Ct. 58,
`190 L.Ed.2d 32 (2014) (ranking and selecting treatments
`for sick patients). Similarly, considering which to apply
`
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`
`and evaluating the results from multiple methods for testing
`whether an equipment operator is suffering from a physical,
`medical, or emotional impairment is a process that can be
`carried out by doctors, EMT's, police officers, and others.
`
`*4 Having concluded that the ′392 patent embodies an
`abstract idea, it is necessary to consider whether the elements
`of infringing claims 8, 9, and 11 through 18 set forth an
`inventive concept sufficient to transform the claims into a
`patent-eligible application of equipment operator impairment
`testing. Claim 8 is representative. The key term is “expert
`
`system(s),” which appears in all of the claims which are
`charged to be infringed. VIS concedes that to overcome prior
`art in the field of impairment-detection systems, the ′392
`patent provides that an “expert system” is used to screen
`and selectively test for operator impairment and control of
`equipment. The patent does not define the term “expert
`system” as such; however, the figures, particularly Figure 8,
`and the related specifications provide intrinsic evidence of
`what is intended.
`
`Expert systems are a class of computer programs first
`developed in the 1960's that seek to emulate the decision-
`making of human experts in a field of expertise (e.g.,
`chemistry, medicine, geology). An expert system stores
`knowledge obtained from human experts in a “knowledge
`base.” In the field of medical diagnosis, an expert system will
`
`include rules concerning the symptoms and characteristics
`associated with various ailments. The system will have a
`“decision module” inference engine that is programmed to
`selectively apply expert rules stored in the knowledge base
`in order to resolve problems. An example of the application
`of an Artificial Intelligence system is a backward-chaining
`
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`
`process that searches the knowledge base for rules to either
`verify or disprove that a patient has or doesn't have flu.
`The decision module will search for and apply rules in the
`knowledge base related to symptoms of flu. The application
`of those rules may verify the hypothesis or lead to other
`hypotheses and the application of additional rules. Also, the
`expert system must have a means of interfacing with a user.
`
`The New Encyclopedia Britannica, Vol. 4 at 633
`(Micropedia, 15th ed.2005), states:
`
`system, an advanced computer program
`expert
`(instruction set) that mimics the knowledge and reasoning
`capabilities of an expert in a particular discipline. Its
`programmers strive to clone the expertise of one or several
`human specialists to create a tool that can be used by
`a layperson to solve difficult or ambiguous problems.
`A chief advantage of expert systems is their low cost
`compared with the expense of paying an expert or a team
`of specialists;
`
`Expert systems differ from conventional computer
`programs, the chief functions of which include data
`manipulation, calculations, and information retrieval. In
`contrast, expert systems combine facts with rules that
`state relations between the facts to achieve a crude
`form of reasoning analogous to artificial intelligence. The
`two main components of an expert system are (1) the
`knowledge base, which differs from a database in that it
`contains executable program code (instructions) and (2)
`the inference engine, which interprets and evaluates the
`instructions and data in the knowledge base.
`
`As used in the ′392 patent, the term “expert system(s)” was
`construed to mean:
`
`consisting
`computer program
`a
`of 1 (1) a database module
`that
`contains
`information a specialist
`would consider in an analysis of an
`equipment operator for impairment;
`(2) a decision module that applies
`logic for screening and testing an
`equipment operator for impairment
`and for controlling equipment, and (3)
`an interface module which interfaces
`with one or more equipment modules
`and the equipment operator.
`
`VIS II, 2014 WL 4652563 at *3.
`
`*5 [7] Claim 8 provides that “screening” an equipment
`operator for potential impairment is implemented using an
`“expert system” that “includes a time-sharing allocation
`of at least one processor.” Generic computer automation
`of the conventional “screening” step does not amount to
`an “inventive concept.” An abstract idea does not become
`patent-eligible by specifying that a computer can be used to
`implement the idea. Alice Corp., 134 S.Ct. at 2358 (“These
`cases demonstrate that the mere recitation of a generic
`computer cannot transform a patent-ineligible abstract idea
`into a patent-eligible invention.”). In Alice Corp., the asserted
`claims required use of a computer as a third party to
`mitigate settlement risk. The computer performed the steps
`of creating account records, obtaining account data, adjusting
`account balances, and issuing automated instructions to
`execute valid transactions. Id. at 2359. The computer was
`comprised of various components—including a “data storage
`unit,” a “data processing system,” and a “communications
`controller,” id. at 2360—that were configured to implement
`the settlement process. The Court explained that generally
`requiring some non-specific computer implementation of
`“purely conventional” steps is not an inventive concept. Id.
`at 2359. Commonplace computer components—such as a
`data storage unit—are insufficient under § 101. Accenture
`Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d
`1336, 1344–45 (Fed.Cir.2013) (“recitation of a combination
`of computer components including an insurance transaction
`database, a task library database, a client component, and
`a server component, which includes an event processor, a
`task engine, and a task assistant.”); Dealertrack, 674 F.3d at
`1333 (Use of a “central processor” did not qualify as patent-
`eligible because patent was “silent as to how a computer aids
`the method, the extent to which a computer aids the method,
`or the significance of a computer to the performance of the
`method. The undefined phrase ‘computer aided’ is no less
`abstract than the idea of a clearinghouse itself.”).
`
`The “expert system” as construed is a generic computer,
`performing the otherwise conventional steps of screening
`for impairment. The claims do not require that the expert
`system be programed to perform the function in any
`specific way; indeed, as noted above, the claim seeks to
`cover any type of testing for any kind of impairment.
`As in Dealertrack,“[b]ecause the computer here can be
`programmed to perform very different tasks in very different
`ways ... it does not play a significant part in permitting the
`claimed method to be performed.”674 F.3d at 1333 (quoting
`Aristocrat Techs. Australia Pty Ltd. v. Int'l Game Tech., 521
`
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`
`F.3d 1328, 1333 (Fed.Cir.2008); CyberSource, Inc., 654 F.3d
`at 1375).
`
`Claim 8 does not recite any new or improved computer
`technology or provide new physical components. The
`components of the “expert system” of the ′ 392 patent cover
`hardware and software that fall squarely within the category
`of generic computer components that courts have held to
`be insufficient under § 101. SmartGene, 555 Fed.Appx. at
`955 (“The claim does not purport to identify new computer
`hardware: it assumes the availability of physical components
`for input, memory, look-up, comparison, and output.”).
`
`Independent Claim 16 of the ′392 patent provides as follows:
`
`16. A system to screen an equipment operator, comprising:
`
`a screening module to screen and selectively test an
`equipment operator when said screening indicates potential
`impairment of said equipment operator, wherein said
`screening module utilizes one or more expert system
`modules in screening said equipment operator; and
`
`a control module to control operation of said equipment if
`said selective testing of said equipment operator indicates
`said impairment of said equipment operator, wherein said
`screening module includes one or more expert system
`modules that utilize at least a portion of one or more
`equipment modules selected from the group of equipment
`modules consisting of: an operations module, an audio
`module, a navigation module, an anti-theft module, and a
`climate control module.
`
`Col. 16, ll. 47–61.
`
`Claim 16 provides for “modules” that “screen” equipment
`operators for impairment, “selectively test” potentially
`impaired operators, and “control operation” of the equipment
`in response to the impairment testing. The “screening” is
`performed using an “expert system” that utilizes equipment
`modules. It is not limited to any particular type of impairment,
`does not require any specific method of impairment testing,
`and does not specify how the “expert system” would be
`programmed to perform the “screening.” The “screening
`module,” “expert system,” and “control module” elements of
`claim 16 fail to set forth an “inventive concept” for the same
`reasons that the parallel limitations of claim 8 are deficient.
`
`*6 Claim 16 requires the expert system to “utilize at least
`a portion of ... an operations module, an audio module, a
`
`navigation module, an anti-theft module, [and/or] a climate
`control module.” The element does not meaningfully limit
`the concept of impairment detection because it does not
`specify how the expert system must “utilize at least a
`portion” of the various “modules.” Dealertrack, 674 F.3d
`at 1333. The additional language of claim 16 does not
`add anything beyond the construction of “expert system,”
`which already required the system to “interface with one or
`more equipment modules.” Requiring that impairment testing
`utilize information about how equipment is operated is a
`conventional practice long present in impairment detection.
`
`VIS has also alleged infringement of dependent claims
`9, 11–15, and 17–18. These claims, whether considered
`individually, or in combination with claim 8 or 16, do not
`contain any “inventive concept” that would qualify for patent
`protection.
`
`The exemplary claim language of claims 9 and 12 is as
`follows:
`
`The method of claim 8, wherein
`said screening of said equipment
`operator includes utilization of at least
`a portion of one or more existing
`equipment modules selected from the
`group of existing equipment modules
`consisting of: an operations module,
`an audio module, a navigation module,
`an anti-theft module, and a climate
`control module.
`
`Col. 15, ll. 44–49 (claim 9). See also Col. 16, ll. 7–13 (claim
`12) (substituting “selective testing” for “screening”).
`
`This limitation reflects the language of claim 16. This is not
`a sufficient limitation on the concept of impairment testing
`because the claim does not require that the various “modules”
`be “utilized” in any particular way and, basing impairment
`determinations on information about the operation of
`equipment is a conventional step of impairment testing.
`
`The exemplary claim language of claims 11 and 18 is as
`follows:
`
`The method of claim 8, further
`comprising measuring at least one
`characteristic of
`said equipment
`operator
`including one or more
`characteristics selected from the group
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
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`

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`Vehicle Intelligence and Safety LLC v. Mercedes-Benz USA, LLC, --- F.Supp.3d ---- (2015)
`2015 WL 394273
`
`consisting of: at least one chemical in
`proximity to said equipment operator,
`breathing rate of said equipment
`operator, blood pressure of said
`equipment operator, blood pulse rate
`of said equipment operator, blood
`oxygen
`level of said equipment
`operator, electrical resistance of a
`portion of skin of said equipment
`operator, electrical conductivity of a
`portion of skin of said equipment
`operator, temperature of a portion
`of skin of said equipment operator,
`one or more optical characteristics of
`at least one eye of said equipment
`operator, optical response to at least
`one stimulus of at least one eye
`of said equipment operator, at least
`one speech characteristic of said
`equipment operator, comparison of
`at
`least one speech characteristic
`of said equipment operator
`to a
`reference speech characteristic of
`said equipment operator, a speed of
`dexterity of said equipment operator
`in performing at least one task, and
`a consistency of dexterity of said
`equipment operator in performing at
`least one task.
`
`Col. 15, l. 54 to Col. 15, l. 6 (claim 11). See also Col. 17, l.
`13 to Col. 18, l. 15.
`
`Claim 11 provides a list of factors that may be “measured”
`to detect impairment. This list of characteristics correlated
`with impairment is a list of nonpatentable laws of nature.
`PerkinElmer, Inc. v. Intema Ltd., 496 Fed.Appx. 65, 71
`(Fed.Cir.2012) (“The ‘measuring’ steps are insufficient to
`make the claims patent-eligible. They merely tell the users
`of the process to measure the screening markers through
`whatever known method they wish.... These steps tell the user
`to engage in well-understood, routine, conventional activity
`previously engaged in by scientists who work in the field.”).
`
`control responses selected from the
`group of control responses consisting
`of: disabling said equipment, disabling
`said equipment after a time delay,
`temporarily disabling said equipment
`for a preselected
`time duration,
`shutting off power to said equipment,
`limiting operation of said equipment to
`a lower speed of operation, limiting the
`operation of said equipment to allow
`only return of said equipment to a pre-
`selected state, limiting the operation of
`said equipment to allow return of said
`equipment to a pre-selected location,
`autonomously moving said equipment
`to another location, denying entry to
`said equipment, activating an alarm,
`sending a warning message to another
`entity for assistance, issuing a warning
`message to an impaired equipment
`operator, and making a request for
`another equipment operator to replace
`an impaired equipment operator and
`then restricting operation of said
`equipment if said request is not obeyed
`within a pre-selected time.
`
`Col. 16, ll. 13–30 (claim 13). See also Col. 16, l. 16 to Col.
`17 l. 12 (claim 17).
`
`The claims list the examples of “controlling operation” of
`the equipment. This list indicates that “controlling operation”
`is merely a conventional step because it includes even the
`routine step of reporting the results of an impairment test.
`
`Claim 14 provides:
`
`The method of claim 8, wherein said
`selective testing of said equipment
`operator
`includes a
`time-sharing
`allocation of one or more processors
`of one or more existing equipment
`modules executing one or more expert
`systems.
`
`*7 The exemplary claim language of claims 13 and 17 is as
`follows:
`
`Col. 16, ll. 31–34.
`
`The method of claim 8, wherein
`said controlling operation of said
`equipment
`includes one or more
`
`Claim 14 requires that the selective testing be done using a
`“processor.” A “processor” is a generic computer component
`the use of which does not amount to an inventive concept.
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
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`Vehicle Intelligence and Safety LLC v. Mercedes-Benz USA, LLC, --- F.Supp.3d ---- (2015)
`2015 WL 394273
`
`Claim 15 provides:
`
`The method of claim 8, wherein said
`selective testing selectively changes
`according
`to one or more other
`factors chosen from the group of
`factors consisting of air temperature,
`oxygen level, carbon dioxide level,
`carbon monoxide levels, nitrous oxide
`levels, hydrocarbon vapor levels, the
`presence of any gas associated with
`impairment, air humidity, air pressure,
`time of day, time duration of vehicle
`parking, voice loudness levels in
`proximity to said equipment, history
`of operation of said equipment by said
`equipment operator, initial beginning
`of operation of said equipment by
`said equipment operator, and ongoing
`operation of said equipment by said
`equipment operator.
`
`Col. 16, ll. 35–46.
`
`Claim 15 provides that the impairment testing changes in
`response to one or more of several listed factors. It represents
`the abstract idea of making a conditional decision. Comcast
`IP Holdings I, LLC v. Sprint Commc'ns Co., ––– F.Supp.3d
`––––, –––– – ––––, 2014 WL 3542055 *3–4 (D.Del. July
`16, 2014) (concept of making a conditional determination
`is ineligible for patenting under § 101); PerkinElmer, 496
`Fed.Appx. at 70–71 (process of taking subsequent down-
`syndrome test depending on the results of a first test is not
`patentable under § 101).
`
`*8 Claim 15 does not limit the concept of impairment testing
`because it does not confine the asserted claims to testing any
`
`particular type of impairment or use of any particular type of
`testing. The step of claim 15 could be performed entirely in
`the human mind.
`
`Following briefing of the present motion, VIS called
`attention to a recent opinion of the Federal Circuit which
`considers the application of § 101 to a patent directed
`to computer architecture that aplies to internet websites.
`SeeDDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245
`(Fed.Cir.2014). With one judge dissenting, the court held that
`a non-conventional process for resolving an internet-centric,
`hyper-link problem is patent eligible. The court distinguished
`DDR from Alice ; Ultramercial, Inc. v. Hulu, LLC, 772
`F.3d 709 (Fed.Cir.2014); buySAFE, Inc. v. Google, Inc., 765
`F.3d 1350, 1355 (Fed.Cir.2014); Accenture ; and Bancorp
`as involving generic computer equipment from the internet
`world of DDR. The DDR Holdings case is not applicable
`to the issues in this case. Cf.Tenon & Groove, LLC v.
`Plusgrade S.E.C., 2015 WL 82531 *7 n. 5 (D.Del. Jan.
`6, 2015); KomBea Corp. v. Noguar L.C.,