COMMISSIONER'S DECISION
Section 2 Elevator Up Peak Dispatching
The application and claims are directed to a combination of elements that form
a elevator apparatus and are acceptable under 5.2. Refection withdrawn.
This decision deals with Applicant's request for review by the Commissioner
of Patents of the Final Action on application 364,880 (Class 364-11) filed
November 18, 1980, assigned to Otis Elevator Co. entitled VARIABLE ELEVATOR
UP PEAK DISPATCHING INTERVAL. The inventors are Joseph Bittar and Arnold
Mendelsohn. The Examiner in charge issued a Final Action on October 27,
1983 refusing to allow the application. In view of information that has
become available subsequent to the Final Action, the Patent Appeal Board
believes a review of the evidence on file permits a sufficient assessment
of the merits of the application without conducting a Hearing. The Board
recognizes that Applicant's right to a Hearing has not been waived.
The application relates to an elevator system servicing a plurality of
floors in a building, shown in figure 1 reproduced below, a simplified
illustration of the components implementing the elevator functions.
<IMG>
The group controller 17 for multi-car operations receives the up and down
calls from each floor landing 18 and assigns cars according to various
strategies using the controller and the panel 21 and the responses from the
car controllers 16 which in turn communicate with the cab controllers 34.
The group controller includes the signal reception means and the integrated
elements which respond to the signals received, and produces commands to
the cars based on a plurality of constantly changing aspects of operation
and on an overall program structure.
Figure 3, reproduced below, illustrates the overall system and the routines
(some referring to other figures for detail) which communicate their
separate response factors to the group controller.
<IMG>
The particular elevator system that Applicant claims relates to the means
associated with the up peak routine 6 shown by figures 5 to 7, and the
means to determine the approximate round trip time taken by the cars as
they respond to calls in moving through the various zones in the building
configuration, shown by figure 8. Briefly stated, the description relating
to figures 5 to 7 outlines various tests and procedures that are
continually performed on each car with respect to the service desired to
answer lobby calls during peak periods. Among the determinations made are
the number of zones, the weight of the cars as they pass through the zones,
the cars available for the different zones, and the up peak condition
requirements. Using these results, the routine of figure 8 makes time
related determinations for example, times for round trip runs of the cars,
times to service all the calls registered based on distances to travel up
and down, velocities attained, and door open times at floors. All the
information is processed dynamically based on the times received from all
the cars, and summations are made and a signal sent to the car satisfying
the conditions to service a call at a particular instance.
In his Final Action the Examiner refuses the application for disclosing and
claiming non-statutory subject matter in view of Sections 2 and 28(3) of
the Patent Act. He considers the elevator system of figure 1 and the
controller shown in figure 2 are "common and/or well known in the elevator
art". He regards claims 1 to 6 as defining "... the new mode of the
operational control of the well known elevator system". He draws
Applicant's attention to guideline 3 published in the P.O.R. of August 1,
1918, and to the court cases, Schlumberger vs. The Commissioner of Patents
56 CPR (2d) page 204, and the United States Supreme Court decision Diamond
vs. Diehr 209 USPQ p.1. In rejecting the application he said, in part, as
follows:
Turning to the present application, the essential subject
matter lies in the programs or routines shown in figures 3 to
14. What is new here is the discovery of these programs to
instruct the well known microcomputer to control the well known
elevator hardware shown in figures 1 and 2. Since the
applicant has not disclosed any new electronic circuit or
hardware to carry out these programs, then these programs could
be assimilated to a "mere scientific principle" or
"instructions to operate a computer".
In the response to the Final Action, Applicant argued in part as follows:
...
... the claims of the present application are not directed to a
computer program or algorithm per se but, rather, they are
directed to an elevator system including, as noted above, a
number of elevators each including a car, car motion means,
etc. and means for registering car calls, call controller
means, with the system being characterized by a novel and non-
obvious type of elevator operational control. The system uses
a processing unit to carry out various functions to achieve
that control. The processing unit may be a central processing
unit, an analog computer, or even a conglomeration of discrete
logic components. The selection does not matter because it
does not matter what specific type of processor is used. It is
the operational control provided by the overall system that is
novel and non-obvious, not the processor. Hence, it is
immaterial that similar hardware parts may be shown in the
other patents noted by the Examiner. This is a system
invention; the invention lies in the manner in which its parts
co-act and are controlled. Stated differently, the utility of
the invention can be said to reside in the useful results
produced by the combination of the novel elevator operational
control and the a elevator system components set forth in the
claims. These give rise to new elevator control and
performance characteristics.
...
In support of his argument, Applicant discusses various court decisions to
show his subject matter is patentable. He disagrees with the
interpretation given, in the Final Action, to the decision in Schlumberger,
supra, and the decision in Diehr, supra. He recognizes there are many
areas of human endeavours that do not constitute proper subject matter, and
refers to Lawson vs. The Commissioner of Patents 62 CPR p. 107 as follows,
It was held that the development in question was not proper
subject matter for a patent in that the method fell within the
skill of a solicitor and conveyancer and that of a planning
consultant and surveyor. It was described as being an art
which belongs to the professional field and not a manual art or
skill.
aid to Tennessee Eastman vs. The Commissioner of Patents 62 CPR 117
(affirmed 1974 SCR 111),
... it was held that a method of treating the human body by
means of a surgical technique involving the use of a surgical
adhesive known per se lay within the realm of professional
skills and was net a manual art and not an art within the
meaning of that term in Section 2.
...
In Applicant's view, the present application is not concerned with
professional skills, nor whether the subject matter is a fine art as
distinct from a manual art. He then refers to the Patent Office Record of
August 1, 1978 p. xxvi containing a decision by the Commissioner of Patents
which comments on a Supreme Court decision in Gottschalk v. Benson et al
175 USPQ 673, in part, as follows:
... the U.S. Supreme Court held that since the mathematical
formulae involved had no substantial practical application
except in connection with a digital computer, a patent would
wholly pre-empt the mathematical formulae and in practical
effect would be a patent on the algorithm itself. In other
words, the claims were not limited to a particular novel
apparatus and are not confined to a specific end use of field
of technology.
Moving next to Applicant's discussion involving the United States decision
in Re Freeman (197 USPQ 464), he draws attention to the following passage
which takes cognizance of the above Benson decision:
Determination of whether a claim pre-empts non-statutory
subject matter as a whole, in the light of Benson, requires a
two-step analysis. First, it must be determined whether the
claim directly or indirectly recites an "algorithm" in the
Benson sense of that term, for a claim which fails even to
recite an algorithm clearly cannot wholly pre-empt an
algorithm. Second, the claim must be further analyzed to
ascertain whether in its entirety it wholly pre-empts that
algorithm.
Applicant believes the findings in Diehr are important to a full
consideration of his application, and he sums up four aspects of that
decision, which briefly are as follows:
1. the claims did not seek to re-empt the use of an equation but
sought to foreclose from others the use of that equation in
conjunction with all the other steps in their claimed process.
2. a claim drawn to subject matter otherwise statutory does not
become non-statutory because it uses mathematical formulae, or
computer or digital programs.
3. claims must be considered as whole.
4. statutory subject matter existed despite the inclusion of a
formula that could stand on its own.
To support his viewpoints he selects the following passage from Diehr p. 9
"It is inappropriate to dissect the claims into old and new
elements and then to ignore the presence of the old elements in
the analysis. ---The 'novelty' of any element or steps in a
process, or even of the process itself, is of no relevance in
determining whether the subject matter of a claim falls within
the Section 101 categories of possibly patentable subject
matter."
Next, he points to the consistency of the above position with that
expressed by the Exchequer Court of Canada in Omark Industries vs. Gouger
Saw Chain Co. et al 45 CPR pp. 218, 219 in quoting from the English
decision in Albert wood & Amcolite Ltd. vs. Gowshall Ltd. (1936) 54 RPC p.
37 as follows:
"The dissection of a combination into its constituent elements
and the examination of each element in order to see whether its
use was obvious or not is, in our view, a method which ought to
be applied with great caution since it tends to obscure the
fact that the invention claimed is the combination."
In Applicant's view, simply because a computer is used in a system is no
reason for considering the system not to be a proper combination in the
patentable sense. He argues his claims are to an elevator system and
should be considered as setting out statutory subject matter, and he relies
on Schlumherger, above, at p. 206 as follows:
I am of the opinion that the fact that a computer is or should
be used to implement discovery does not change the nature of
that discovery.
He reasons Applicant's system is allowable on the basis that;
... if the operational control shown herein had been replaced
with an equivalent hardware system, i.e. a system of discrete
logic components, it is extremely unlikely that the Examiner
would have raised any objection to the claims as being non-
statutory in the first place. Yet, an elevator system
operating under the control of a 'hardware' system (a system of
discrete logic gates, flip flops, etc.) is not fundamentally
different, at least as far as its inventive content is
concerned, from an elevator system incorporating as its
operational control a pre-programmed computer arranged to
provide the same end results. Essentially the same form of
claim could be drawn for each system. It would surely not be
logical to reject one system as being non-statutory by virtue
of its use of a pre-programmed computer while the other is
allowed the benefit of patent protection merely because it uses
hardware components.
The Applicant contrasts the facts in this application with those in the
Schlumberger case, stressing that Applicant's invention when considered as
a whole provides an improved form of elevator control.
In a Supplemental Response dated September 10, 1985, Applicant draws
attention to a recent decision of the Commissioner of Patents forming part
of the file of Canadian Patent 1,185,714 issued April 16, 1985 to
Westinghouse. He points out the similarities of the subject matter of this
application to that of the elevator system of the above patent, noting
particularly that in the patent the elevator service is part of the system
patented. The Applicant quotes passages that were considered relevant from
the Schlumberger case in finding the subject matter acceptable in
Westinghouse. He then argues, "... in the words of the Schlumberger
decision, once it has been determined what, according to the application,
has been discovered", it will be found that the inventive idea, in the
words of the Westinghouse decision, "lies not solely in a program but in
changes brought to the operation of elevator systems".
The issue before the Board is whether or not the application discloses and
claims non-statutory subject matter in view of Sections 2 and 28(3) of the
Patent Act. Claim 1 reads:
An elevator system including a group of elevators for servicing
a plurality of floor landings in a building, comprising:
group controller means, including hall call means for
registering calls for up and down service at each of said
landings, for exchanging signals with each of said elevators,
and for controlling the operation of said elevators in response
to said hall call means and signals received from said
elevators;
each of said elevators including a car, car motion means for
providing and arresting the motion of said car, means
registering car calls for service required by passengers
therein, and a car controller means for providing signals
empty zones with unassigned cars and to cause assigned cars to
reach floors in their respective zones where floor calls are
registered, for determining up peak traffic conditions, for
forcing cars from selected zones in the high end of the
building to the main landing in response to up peak traffic
conditions, for dispatching cars from the main landing at
intervals in response to up peak traffic conditions and for
issing stop commands to each car in response to said signals
indicative of conditions of said car indicating that the
committable floor position of said car coincides with the floor
landing of an empty zone or a floor call for which a zone
demand signal has been provided to said car;
each of said elevators including a car, car motion means for
providing and arresting the motion of said car, means for
registering car calls for service required by passengers
therein, and a car controller means for providing signals
indicative of conditions of said car, and for controlling said
car motion means to cause said car to move in a selected up or
down direction and to stop in response to said signals
indicative of conditions of said car and to signals received
from said group controller means;
characterized by said signal processing means comprising means
for determining from car calls registered in any car dispatched
from the main landing of the building in response to up peak
traffic conditions the approximate round trip time required for
such car to service such car calls and return to said main
landing, and for varying the dispatching interval in accordance
with said approximate round trip time.
The Examiner sees the subject matter of the application as lying solely in
the programs shown in figures 3 to 14. He regards claims 1 to 6 as
defining a new mode of operational control, but takes the view they define
only known hardware, and the routines of the above figures. Applicant
believes the application and the claims contain patentable subject matter,
and advances arguments that the inventive idea of his system as a whole
must be borne in mind, and that his invention is not a mere computer
program or algorithm.
In dealing with the kind of subject matter in the disclosure and claims of
this application, we find direction from the decision in Schlumberger
Canada Ltd. v. The Commissioner of Patents [1981] 56 CPR (2d) at 204, in
the following passages of Pratte J.:
In order to determine whether the application discloses a
patentable invention, it is first necessary to determine what,
according to the application, has been discovered,
and
I am of opinion that the fact that a computer is or should be
used to implement discovery does not change the nature of that
discovery.
We turn our attention to a determination of "what" has been discovered by
Applicant. As noted in Omark Industries supra, if a combination is
present, then great caution should be observed before dissecting it into
its components on the basis of what is old and what is new. Here, in
considering the overall inventive idea presented by the specification, we
find an elevator system comprising several components, inter alia, elevator
cars and associated lift means, a group controller for the cars, individual
car motor generator means, and a rapid response control means for the
elevator calls which responds to a plurality of elevator movements and
conditions during up peak routines including round trip times, the load
weights of the cars, the zones assigned and passed through, and waiting
times in servicing floors. We believe the disclosure is directed to an
improved elevator system which lies in a field of subject matter that may
be patented under Section 2 of the Patent Act. We are aware that programs
are present, just as we see that elevator apparatus is described. However,
when. considering "what, according to the application" is the inventive
idea, we are persuaded that Applicant has provided a combination of
elements to provide an elevator system, and not solely a program. Having
found the inventive idea lies in the combination, we dismiss the rejection
made under Section 2d(3) of the Act.
In reviewing the claims, we find they are directed inter alia, to an
elevator system having a group controller for sending signals to the cars,
car controller means providing signals indicative of traffic conditions,
and signal processing means responsive to the signals indicative of car
conditions for providing each car with a signal representing a summation of
relative response factors which are weighted with respect to one another to
provide a reasonable response time according to the desired scheme of
elevator service for hall calls. No art having been cited, nor other
objections mane, the claims appear to be acceptable.
In summary, we find the elevator system presented in the application and
defined in the claims, when considered in light of the "what" that is
described in the specifications, is directed to a combination residing in a
patentable field of endeavor.
We recommend that the rejection of the application and claims for being
directed to subject matter non patentable in view of Sections 2 and 28(3)
of the Act, be withdrawn and the application be returned for continued
prosecution.
M.G. Brown S.D. Kot
Actine Chairman Member
Patent Appeal Board
I concur with the reasoning and the findings of the Patent Appeal Board.
Accordingly, I withdraw the rejection of the application and remand it for
continued prosecution.
J.H.A. Gari‚py
Commissioner of Patents
Dated at Hull, Quebec
this 14th day of April 1986
Gowling & Henderson
~~ 406 Terminal a
Ottawa Ontario
~~~ 8S3