In the Matter of Certain Machine Vision Software, Machine Vision ...

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UNITED STATES INTERNATIONAL TRADE
COMMISSION
Washington, D.C. 20436
In the Matter of
CERTAIN MACHINE
VISION
SOFTWARE, MACHINE
VISION
SYSTEMS,
AND
PRODUCTS
CONTAINING SAME
Investigation No. 337-TA-680
COMMISSION OPINION
I.
INTRODUCTION
On
July
16,2010,
the presiding administrative law judge
("ALJ")
issued a final initial
determination
("ID")
in
the above-captioned investigation, fmding no violation of section 337 of
the Tariff Act of
1930,
as amended (19 U.S.c. § 1337), by respondents' accused products. The
Commission determined to review the ID with respect to the following issues: (1) claim
construction and infringement of certain
terms
and steps, domestic industry, and invalidity
relating to u.s. Patent No. 7,016,539
("the
'539
paten!");
(2) the ID's finding that the '539 patent
and U.s. Patent No. 7,065,262
("the
'262 patent) are invalid, pursuant to 35 U.S.C. §
101,
for
failure to claim patent-eligible subject matter; and (3) the ID's finding that claims 1, 12, 13,28,
and 29 of the
'262
patent are anticipated under 35 U.S.C. § 102 in view of prior art,
viz.,
a 1992
MIT thesis by Wells. 75
Fed. Reg.
60478-80
(September
30,2010).
On
review, the Commission determined to
modifY-in-part
and affirm-in-part the ALJ's
determination, and terminated the investigation with a finding of no violation of section 337.
See
Certain Machine Vision Software, Machine Vision Systems, and Products Containing Same,
!nv.
No. 337-TA-680, Comm'n Notice (November 16,2010). The Commission set aside the ALJ's
[mdings concerning anticipation ofthe '262 patent and adopted his claim construction,
infringement, invalidity, and domestic industry findings concerning the '539 patent.
Id
Also,
the Commission has supplemented, as set forth below, the
ALl's
analysis supporting his finding
that the '539 and '262 patents fail to claim patent-eligible subject matter.
II.
DISCUSSION
The ALl correctly found that the asserted method claims of the '539 and '262 patents are
not patent-eligible subject matter under 35
U.S.c.
§
101
in view of
Bilski
v.
Kappos,
130 S.
Ct.
3218 (2010),
Gottschalkv. Benson,
409 U.S.
63 (1972),
andParkerv. Flook,
437
U.S.
584
(1978). All of the claimed steps of the patents asserted here,
e.g.,
generating, receiving,
analyzing, providing, comparing, and computing, are no more than algorithms or data gathering
steps, and neither they nor the patent specification limit the claims to patentable industrial
processes.
Supreme
Court precedent makes it clear that a claimed process is not patent-eligible if
it claims
"laws
of nature, natural phenomena, [or] abstract
ideas."
Diamond
v.
Diehr,
450 U.S.
175, 185 (1981). This is the case here as the asserted claims of both patents cover an idea
without a link to any real-world undertaking. Although the patent specifications provide a litany
of potential uses of the claimed algorithms such as
"industrial
automation, medical diagnosis,
satellite imaging for a variety of military, civilian, and scientific purposes, photographic
processing, surveillance and traffic monitoring, and document
processing,"
the two specifications
are silent as to any actual implementation beyond the abstract concepts
(i.
e.,
algorithms) that are
claimed. '539 patent, col. 1:28-34; '262 patent, col. 1:13-17.
Consistent with
Benson
and
Flook,
and in direct contrast to
SiRF
Tech., Inc.
v.
Int'l Trade
Comm 'n,
601
F.3d 1319, 1332-33 (Fed. Cir.
2010),
cited by complainants, the asserted claims
2
have unbridled scope and attempt to pre-empt any use of the claimed idea regardless of the
machinery used to implement the idea. In fact, any system that can deliver an image would be
covered by the asserted method claims because the claims are not limited to any specific machine
vision device. While the patent specifications teach that many imaging devices exist,
e.g.,
x-ray
devices, CT scanners, MRI machines,
TV
cameras, for implementing the claimed technology,
'539 patent, col. 1:7-18 and '262 patent, col. 1 :24-29, the claims do not tie the subject matter to
any particular machine as required by Supreme Court precedent. Moreover, the
"image"
described in the patents is not required to represent anything real, as it may be a
"2-dimensional
function ... whose values correspond to simulated characteristics of an object." '539 patent, col.
3:66 to col. 4:5; see '262 patent, col. 5:36-43. Further, an
"image"
is a mathematical function (a
2-D array of numbers), as opposed to a physical thing, and can be simulated, with the same being
true for the
"models"
described in the patents. '539 patent, col. 3:66 to col. 4:26; see '262 patent,
col. 5:36-43, col. 11:3 to col. 12:63. Accordingly, the broad definition of
"image"
advanced by
complainants would cover anything that creates an image, and is therefore not limiting at all.
In
addition, the asserted claims do not transform anything, but rather simply collect
data.
See
In re Bilski, 545 F.3d 943,963 (Fed. Cir.
2008)
(en banc)
("A
requirement simply that
data inputs be gathered
-
without specifying how
-
is a meaningless limit on a claim to an
algorithm because every algorithm inherently requires the gathering of data inputs). Particularly,
nothing about the image or model claimed in these patents is transformed or manipulated in any
manner by the asserted claims, and the result itself is not displayed or otherwise transformed.
As even complainants admit, the cases they cite to oppose the ID's finding, Arrhythmia
Research Tech., Inc. v. Corazonix Corp., 958 F.2d 1053, 1058-59 (Fed. Cir. 1992) and In re
3
Abele,
684 F.2d
902,909
(Fed. Cir. 1982) were based
on
the so-called
Freeman-Walter-Abele
test, which was rejected by
In re Bilski.
1
Bilski,
545 F.3d at 958-59. Furthermore,
SiRF
and
In re
Nuijten,
500
F.3d 1346, 1351 (Fed. Cir.
2007),
also cited by complainants, are inapposite because
SiRF
clearly involved a claim tied to a machine,
i.
e.,
a
GPS
receiver, and
Nuijten
clearly involved
a physical transformation,
i.
e.,
conversion and encoding of a
first
communications signal,
carrying voice data, into a second communications signal to be transmitted and received.
At bottom, the asserted claims have absolutely no tie to any particular machine and fail to
claim a process, using an algorithm, that transforms a claimed article from one form to another as
required for an industrial process
(e.g.,
as in
Diehr).
Rather, the claims merely recite data
gathering steps that, even if executable by a computer (as in
Benson
and
Flook),
fail to transform
any article into a different state or thing.
See Bilski,
545 F.3d at 963. Accordingly, without any
tie to a particular implementation
(e.g.,
machine or transformative industrial process), the patent
claims at issue here pre-empt any use of the underlying algorithm, in contravention of Supreme
Court precedent.
See Bilski,
130 S.
Ct. at 3231;
Flook,
437
U.S.
at 589-91;
Benson,
409 U.S.
at
71-72.
The
claims
of the '539 and '262 patents do not satisfy the
"machine-or-transformation"
test approved by the Supreme Court in
Bilski,
130 S.
Ct. at 3227, and have not been shown to
cover more than abstract ideas. Accordingly, based on the foregoing discussion, they are invalid
pursuant to 35
U.S.c.
§ 101.
I
The
Freeman-Walter-Abele
test included two steps: (1) determining whether the claim
recites an
"algorithm"
within the meaning of
Benson,
then (2) determining whether that
algorithm is
"applied
in
any manner to physical elements or process
steps."
Bilski,
545 F.3d at
958-59; citing Abele,
684 F.2d at
905-07.
4
llI.
CONCLUSION
We affmn the ID's fmding,
as
modified, that the '539 and '262 patents fail to claim
patent-eligible subject matter pursuant to section 10l.
By
order of the Commission.
Issued: November 16,2010
5
Page
1 - Certificate of Service
CERTAIN MACHINE
VISION
SOFTWARE, MACHINE
VISION SYSTEMS,
AND
PRODUCTS
CONTAINING SAME
337-TA-680
CERTIFICATE
OF SERVICE
I, Marilyn
R.
Abbott, hereby certify that the attached
COMMISSION OPINION
has
been served by hand upon the Commission Investigative Attorney, Kevin Baer, Esq., and
the following parties as indicated, on
I n R. Abbott, Secretary
nternational Trade Commissi
500
E Street,
SW
Washington, DC 20436
On
Behalf of Complainants Cognex Corporation and
Cognex Technology and Investment Corporation:
Torn M. Schaumberg, Esq.
ADDUCI, MASTRIANI
&
SCHAUMBERG LLP
1200
Seventeenth Street, NW
Washington, DC
20036
On
Behalf of Respondents
MVTec
Software GmbH;
MVTec
LLC, Visics Corp.; Daiichi Jitsugyo Viswill Co.,
Ltd.; Daiichi Jitsugyo (America), Inc.; and,
Omron
Corporation:
Matthew B. Lowrie
FOLEY
&
LARDNER
LLP
111 Huntington Avenue
Boston, MA 02199
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