Electric Power Group, LLC v. Alstom S.A. (Fed. Cir. 2016)

By Michael Borella --

Patent owner Electric Power Group asserted U.S. Patent Nos. 7,233,843, 8,060,259, and 8,401,710 against Alstom S.A. and various other parties in the Central District of California.  The District Court granted Alstom's motion for summary judgment that the asserted claims were ineligible under 35 U.S.C. § 101.  Electric Power Group appealed to the Federal Circuit.

Claim 12 of the '710 patent was deemed representative.  It recites:

12.  A method of detecting events on an interconnected electric power grid in real time over a wide area and automatically analyzing the events on the interconnected electric power grid, the method comprising:
    receiving a plurality of data streams, each of the data streams comprising sub-second, time stamped synchronized phasor measurements wherein the measurements in each stream are collected in real time at geographically distinct points over the wide area of the interconnected electric power grid, the wide area comprising at least two elements from among control areas, transmission companies, utilities, regional reliability coordinators, and reliability jurisdictions;
    receiving data from other power system data sources, the other power system data sources comprising at least one of transmission maps, power plant locations, EMS/SCADA systems;
    receiving data from a plurality of non-grid data sources;
    detecting and analyzing events in real-time from the plurality of data streams from the wide area based on at least one of limits, sensitivities and rates of change for one or more measurements from the data streams and dynamic stability metrics derived from analysis of the measurements from the data streams including at least one of frequency instability, voltages, power flows, phase angles, damping, and oscillation modes, derived from the phasor measurements and the other power system data sources in which the metrics are indicative of events, grid stress, and/or grid instability, over the wide area;
    displaying the event analysis results and diagnoses of events and associated ones of the metrics from different categories of data and the derived metrics in visuals, tables, charts, or combinations thereof, the data comprising at least one of monitoring data, tracking data, historical data, prediction data,  and summary data;
    displaying concurrent visualization of measurements from the data streams and the dynamic stability metrics directed to the wide area of the interconnected electric power grid;
    accumulating and updating the measurements from the data streams and the dynamic stability metrics, grid data, and non-grid data in real time as to wide area and local area portions of the interconnected electric power grid; and
    deriving a composite indicator of reliability that is an indicator of power grid vulnerability and is derived from a combination of one or more real time measurements or computations of measurements from the data streams and the dynamic stability metrics covering the wide area as well as non-power grid data received from the non-grid data source.

Though lengthy, this claim is broader than it initially appears due to its use of the disjunctive at several points.  The Court described the claimed invention as "performing real-time performance monitoring of an electric power grid by collecting data from multiple data sources, analyzing the data, and displaying the results."

Patent-eligibility is determined by whether claims at issue meet the eligibility requirements set forth by the Supreme Court's two prong test in Alice Corp. v. CLS Bank Int'l.  First, one must determine whether a claim is directed to a judicially-excluded law of nature, a natural phenomenon, or an abstract idea.  If so, then one must further determine whether any element, or combination of elements, in the claim is sufficient to ensure that the claim amounts to significantly more than the judicial exception.  Notably, generic computer implementation of an otherwise abstract process does not qualify as "significantly more."

The District Court determined that the claims were directed to the abstract idea of "monitoring and analyzing data from disparate sources," then concluded that they lacked any further significant limitations.

In providing its opinion, the Federal Circuit reflected on the two-prong test, noting that "we have described the first-stage inquiry as looking at the 'focus' of the claims, their 'character as a whole,' and the second-stage inquiry (where reached) as looking more precisely at what the claim elements add—specifically, whether . . . they identify an 'inventive concept' in the application of the ineligible matter."

Nonetheless, the Court rapidly found the claims to be abstract.  Particularly, the Court characterized the claims to be focused on "collecting information, analyzing it, and displaying certain results of the collection and analysis."  For each of these three steps, the Court cited to recent precedent that found similar aspects to be abstract.  The Court further determined that there was nothing non-abstract in the combination thereof.

Comparing this case to Enfish, LLC v. Microsoft Corp., which involved eligible claims, the Court distinguished between "computer-functionality improvements and . . . uses of existing computers as tools in aid of [abstract] processes."  (We briefly discussed this distinction between tool creation and tool use in our review of Open Parking, LLC v. Parkme, Inc.)  The Court admitted that relying on this notion for the § 101 analysis of software inventions "may present line-drawing challenges because of the programmable nature of ordinary existing computers."

Turning to the second prong of Alice, the Court found that the claims limited the scope of the invention to "the particular technological environment of power-grid monitoring" which was insufficient to transform them into a non-abstract application.  In a rather amusing aside, the Court noted that the claimed invention did not "invoke any assertedly inventive programming."  How the Court came to this conclusion is a mystery -- the steps of a software claim can be implemented in a virtually unlimited number of ways.  And as anyone who has programmed for a living would know, even the most mundane-seeming applications can be innovatively (or non-innovatively) programmed.

Ultimately, the Court seemed to reject the eligibility of these claims based on their broad functional language -- in other words, the Court took issue with the claims defining a fuzzy, aspirational goal rather than a concrete series of steps to achieve a more specific outcome.  The Court distinguished between "ends sought and particular means of achieving them, between desired results (functions) and particular ways of achieving (performing) them."  Quoting the District Court, the panel opined "there is a critical difference between patenting a particular concrete solution to a problem and attempting to patent the abstract idea of a solution to the problem in general."  As a result, the claims were ruled invalid under § 101.

The more one thinks about this decision the more that it seems as if the Court is using § 101 as a proxy for §§ 103 and 112.  If the claims are too broad or indefinite, then these parts of the statute should be used to knock them down.  But right now, § 101 is the proverbial big hammer, and claims like those of Electric Power Group apparently (to the Federal Circuit at least) resemble a nail.

Electric Power Group, LLC v. Alstom S.A. (Fed. Cir. 2016)
Panel: Circuit Judges Taranto, Bryson, and Stoll
Opinion by Circuit Judge Taranto

Comments

[Paul Cole]

"A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing."

It is difficult to see anything sufficiently transformative in the claimed method to bring the claimed combination clearly within section 101. A quick look at the specification does not help. What can you do with the information, and how can you better control the grid?

[Bob]

>> In a rather amusing aside, the Court noted that the claimed invention did not "invoke any assertedly inventive programming." How the Court came to this conclusion is a mystery -- the steps of a software claim can be implemented in a virtually unlimited number of ways. And as anyone who has programmed for a living would know, even the most mundane-seeming applications can be innovatively (or non-innovatively) programmed.

Do you see any innovative algorithm or data structure in the claims? I dont, so the court's conclusion seems straightforward.

[Mike Borella]

So one can just look at claims and determine whether the code to implement the invention is innovative?

[Bob]

I said that the conclusion that the claimed invention did not invoke any assertedly innovative programming was straightforward based on the claims.

Since the claims are on their face enabled by (as opposed to "enabled to"!) the ordinary skill of those in the art, then there is nothing asserting programmatic innovation in the claimed invention.

Claim 1. A computer configured to perform and display a fizbuzz operation.

Even if the specification discloses some absurdly novel fizbuzz solution, there is nothing innovative about the claimed invention's programming until that innovation is actually claimed.

[Mike Borella]

There is no basis for concluding anything regarding the complexity of programmatic implementation of an invention from the language of its claims. Rader made this mistake as well, though in the other direction, in a few 101 cases.

So I disagree with the Court's conclusion that the claims here fail to "invoke any assertedly inventive programming."

[Bob]

Your position is essentially agnostic regarding the programmatic innovation of the claims, and like Agnosticism that's a supremely defensible position but not useful for advancing the discussion.

The point of the court's 'mysterious' conclusion is that the claims were enabled prior to the disclosure, so the disclosure is just a result, i.e., an abstract idea.

[skeptical]

Bob,

That you are cognizant of the legal meaning of the terms that you are using,...

I am....