Alcatel-Lucent USA, Inc.

Patent Trials and Appeals Board

Aug 28, 2020

14706015 - (D) (P.T.A.B. Aug. 28, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/706,015 05/07/2015 Sergio Colla 129250-002407US 5467
32498 7590 08/28/2020
CAPITOL PATENT & TRADEMARK LAW FIRM, PLLC
P.O. BOX 1995
VIENNA, VA 22183
EXAMINER
ZHAO, BING
ART UNIT PAPER NUMBER
2198
NOTIFICATION DATE DELIVERY MODE
08/28/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
jcurtin@cappat.com
knetznik@cappat.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SERGIO COLLA, BILL LEUNG, TUAN NGUYEN,
NIHAL SINGH, and RAJESH SHENOY
Appeal 2019-002457
Application 14/706,015
Technology Center 2100
Before JAMES R. HUGHES, LINZY T. McCARTNEY, and
MICHAEL T. CYGAN, Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
final rejection of claims 6–8, 10–17, 19, 20, 25–27, and 29–35. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Appellant identifies the real party in interest as Alcatel-Lucent. Appeal
Brief 1, filed July 16, 2018 (Appeal Br.).
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BACKGROUND
This patent application concerns monitoring a data center. See
Specification ¶¶ 2, 22, filed May 7, 2015 (Spec.). Claim 6 illustrates the
claimed subject matter:
6. A system for monitoring a data center comprising:
a controller comprising a specially programmed processor
operable to execute instructions stored in an associated memory
to complete one or more integrated processes comprising,
receiving information from one or more non-virtual
elements of the data center;
receiving information in the form of connection,
status, and tunneling information from one or more
configured agents associated with one or more configured
virtual entities of a data center, the configured virtual
entities consisting of virtual switches and virtual
machines, with the tunneling information defining one or
more newly discovered connections between a pair of
instantiated virtual entities; and
parsing the received information from the one or
more non-virtual elements to generate, in combination
with the received information from the one or more
configured agents, a vertical and horizontal mesh network
topology of the data center, and to correlate the generated
data center vertical and horizontal mesh network topology
with one or more services supported by the data center.
Appeal Br. 16.

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REJECTIONS2
Claims 35 U.S.C. § References/Basis
6–8, 10–17, 19,
20, 25–27, 29–35 101 Eligibility
6–8, 10–17, 19,
20, 25–27, 29–35 103 Bird,
3 Bardgett4

DISCUSSION
We have reviewed the Examiner’s rejections and Appellant’s
arguments, and Appellant has not persuaded us that the Examiner erred. As
consistent with the discussion below, we adopt the Examiner’s findings and
conclusions on pages 2–17 of the Final Office Action mailed March 16,
2018 (Final Act.) and pages 4–16 of the Examiner’s Answer mailed
November 30, 2018 (Ans.). We address these rejections in turn.
Section 101 Rejection
Section 101 of the Patent Act provides that “any new and useful
process, machine, manufacture, or composition of matter, or any new and
useful improvement thereof” is patent eligible. 35 U.S.C. § 101. But the
Supreme Court has long recognized an implicit exception to this section:
“Laws of nature, natural phenomena, and abstract ideas are not patentable.”
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for
Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
To determine whether a claim falls within one of these excluded categories,

2 The Examiner withdrew a rejection of claims 6–8, 10–17, 19, 20, 25–27
and 29–35 under § 112. Examiner’s Answer 3, mailed November 30, 2018.
3 Bird (US 7,657,545 B2; February 2, 2010).
4 Bardgett et al. (US 2015/0043378 A1; February 12, 2015).
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the Court has set out a two-part framework. The framework requires us first
to consider whether the claim is “directed to one of those patent-ineligible
concepts.” Alice, 573 U.S. at 217. If so, we then examine “the elements of
[the] claim both individually and ‘as an ordered combination’ to determine
whether the additional elements ‘transform the nature of the claim’ into a
patent-eligible application.” Alice, 573 U.S. at 217 (quoting Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78, 79 (2012)).
That is, we examine the claim for an “inventive concept,” “an element or
combination of elements that is ‘sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself.’” Alice, 573 U.S. at 217–18 (alteration in original) (quoting
Mayo, 566 U.S. at 72–73).
The Patent Office has revised its guidance about this framework. See
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“Revised Guidance”). Under the Revised Guidance, to decide
whether a claim is directed to an abstract idea, we evaluate (1) whether the
claim recites subject matter that falls within one of the abstract idea
categories listed in the Revised Guidance, and if so, (2) whether the claim
fails to integrate the recited abstract idea into a practical application. See
Revised Guidance, 84 Fed. Reg. at 51, 54; see also USPTO, October 2019
Update: Subject Matter Eligibility at 1–2, 10–15, https://www.uspto.gov
/sites/default/files/documents/peg_oct_2019_update.pdf (“October SME
Update”) (providing additional guidance on determining whether a claim
recites a judicial exception and integrates a judicial exception into a practical
application). If the claim is directed to an abstract idea, as noted above, we
then determine whether the claim has an inventive concept. The Revised
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Guidance clarifies that when making this determination, we should consider
whether the additional claim elements add “a specific limitation or
combination of limitations that are not well-understood, routine,
conventional activity in the field” or “simply append[] well-understood,
routine, conventional activities previously known to the industry, specified
at a high level of generality.” Revised Guidance, 84 Fed. Reg. at 56.
With this framework in mind, we turn to the Examiner’s rejection of
claims 6–8, 10–17, 19, 20, 25–27, and 29–35 under § 101. Appellant argues
these claims together, see Appeal Br. 3, so as permitted by 37 C.F.R.
§ 41.37(c)(1)(iv), we decide the appeal for this ground of rejection based on
claim 6.
Directed To
The Revised Guidance explains that the abstract idea exception
includes “mental processes,” that is, acts that people can perform in their
minds or using pen and paper. See Revised Guidance, 84 Fed. Reg. at 52 &
nn.14–15. The Examiner determined that claim 6 recites subject matter that
falls within this category of abstract ideas. See Final Act. 3 (determining that
claim 6 “fall[s] into the category of ‘an idea of itself’” because the claim is
analogous to the patent-ineligible claims in Electric Power Group, LLC v.
Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016)); see also USPTO, July 2015
Update: Subject Matter Eligibility at 5, https://www.uspto.gov/sites/default
/files/documents/ieg-july-2015-update.pdf (explaining that the words “an
idea of itself” refer to “an idea standing alone such as an uninstantiated
concept, plan or scheme, as well as a mental process”); October SME
Update at 7 (explaining that the patent-ineligible claims in Electric Power
Group are examples of claims that recite mental processes).
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We agree. Claim 6 recites “receiving information from one or more
non-virtual elements of the data center” and “receiving information in the
form of connection, status, and tunneling information from one or more
configured agents associated with one or more configured virtual entities of
a data center . . . .” Appeal Br. 16. These limitations recite functions that the
claimed invention performs—receiving certain information—but do not
meaningfully limit how the claimed invention performs these functions.
Given the broad wording of these limitations, they encompass, for example,
people reading the recited information from a computer screen or a database.
See, e.g., CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372
(Fed. Cir. 2011) (determining that a claim step “which requires ‘obtaining
information about other transactions that have utilized an Internet address
that is identified with the [ ] credit card transaction’—can be performed by a
human who simply reads records of Internet credit card transactions from a
preexisting database”); see also Elec. Power Grp., 830 F.3d at 1353 (“[W]e
have treated collecting information, including when limited to particular
content (which does not change its character as information), as within the
realm of abstract ideas.”). Even if these limitations did not encompass acts
that people can perform in their minds or using pen and paper, these
limitations alone would not make claim 6 patent eligible because they
simply gather data. CyberSource, 654 F.3d at 1372 (“[E]ven if some
physical steps are required to obtain information from the database . . . such
data-gathering steps cannot alone confer patentability.”).
Claim 6 also recites
parsing the received information from the one or more
non-virtual elements to generate, in combination with the
received information from the one or more configured agents, a
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vertical and horizontal mesh network topology of the data center,
and to correlate the generated data center vertical and horizontal
mesh network topology with one or more services supported by
the data center.
Appeal Br. 16. Like the receiving limitations, this limitation recites functions
(specifically, parsing, generating, and correlating) without meaningfully
limiting how the claimed invention performs these functions. This limitation
is so broadly worded that it encompasses acts that people can perform
mentally or using pen and paper. See CyberSource, 654 F.3d at 1373
(determining that a claim step “is so broadly worded that it encompasses
literally any method for” performing the step, including “even logical
reasoning that can be performed entirely in the human mind”); Elec. Power
Grp., 830 F.3d at 1354 (“[W]e have treated analyzing information by steps
people go through in their minds, or by mathematical algorithms, without
more, as essentially mental processes within the abstract-idea category.”).
For example, this limitation encompasses people mentally identifying
network entities and connections (among other things) in information
received from the non-virtual elements and configured agents and using the
identified entities and connections to draw or picture a vertical and
horizontal mesh network topology of a data center. This limitation also
encompasses people mentally correlating (or drawing a correlation of) the
topology with the one or more services supported by the data center.
Because claim 6’s receiving and parsing limitations encompass acts
that people can perform in their minds or using pen and paper, claim 6
recites mental processes. See CyberSource, 654 F.3d at 1372 (determining
that “unpatentable mental processes are the subject matter of” a claim when
the claim’s “method steps can be performed in the human mind, or by a
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human using a pen and paper”); see also October SME Update at 9 (“If a
claim recites a limitation that can practically be performed in the human
mind, the limitation falls within the mental processes grouping, and the
claim recites an abstract idea. The use of a physical aid (i.e., the pen and
paper) to help perform a mental step . . . does not negate the mental nature of
this limitation.” (footnote call numbers omitted)). This is true even though
claim 6 recites that a controller performs the functions recited in these
limitations. “Courts have examined claims that required the use of a
computer and still found that the underlying, patent-ineligible invention
could be performed via pen and paper or in a person’s mind.” Versata Dev.
Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015). See also
CyberSource, 654 F.3d at 1375 (“That purely mental processes can be
unpatentable, even when performed by a computer, was precisely the
holding of the Supreme Court in Gottschalk v. Benson.”); October SME
Update at 8 (“Claims can recite a mental process even if they are claimed as
being performed on a computer.”).
Appellant’s arguments have not persuaded us otherwise. Appellant
contends that Electric Power Group does not apply to claim 6 and thus the
claim is patent eligible. See Appeal Br. 7–9. This is so, according to
Appellant, because (1) the Examiner provided no prior art showing that “the
claimed features could possibly be carried out by the human mind”; (2) the
written description establishes that the recited controllers are “‘specially
programmed processors,’ not off-the-shel[f] general purpose computers”;
and (3) “the claimed invention[] do[es] not purport to cover every potential
solution to the stated problem of monitoring data [centers].” Appeal Br. 7–8.
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We disagree. First, Appellant has not pointed to anything that required
the Examiner to provide prior art showing that the claimed invention could
be carried out in the human mind for the reasoning of Electric Power Group
to apply to claim 6. Second, as discussed further below, the written
description describes the recited “specially programmed processor” in a
manner that shows that this element is a generic computer component. And
even if the processor recited in claim 6 was more specific than a generic
computer component, that would not make claim 6 patent eligible. See BSG
Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1286 (Fed. Cir. 2018) (“We
have consistently held, however, that claims are not saved from abstraction
merely because they recite components more specific than a generic
computer.”). Third, even assuming that claim 6 does not preempt all ways of
monitoring data centers, “the absence of complete preemption does not
demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v. Sequenom, Inc.,
788 F.3d 1371, 1379 (Fed. Cir. 2015).
Because we determine that claim 6 recites an abstract idea, we next
consider whether claim 6 integrates the abstract idea into a practical
application. See Revised Guidance, 84 Fed. Reg. at 51. In doing so, we
evaluate the claim as a whole to determine whether the claim “integrate[s]
the [abstract idea] into a practical application, using one or more of the
considerations laid out by the Supreme Court and the Federal Circuit.”
Revised Guidance, 84 Fed. Reg. at 55; see also October SME Update at 12
(discussing the practical application analysis). That is, we consider any
additional elements recited in the claim along with the limitations that recite
an abstract idea to determine whether the claim integrates the abstract idea
into a practical application. See October SME Update at 12.
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The Examiner found that claim 6 recites the following additional
element: “a controller comprising a specially programmed processor
operable to execute instructions stored in an associated memory to complete
one or more integrated processes.” See Final Act. 3. The Examiner
determined that this element encompasses “a generic CPU that is connected
to RAM that stores instructions corresponding to the steps of the claims.”
Final Act. 4. The Examiner determined that “[s]uch recitation of execution
of abstract ideas, at high generality, on generic computers” does “not amount
to significantly more than the identified abstract ideas.” Final Act. 4.
We agree. As determined by the Examiner—and not expressly
disputed by Appellant—the only additional element recited in claim 1 is “a
controller comprising a specially programmed processor operable to execute
instructions stored in an associated memory to complete one or more
integrated processes.” Appeal Br. 16. The written description describes the
recited controller, processor, and memory in largely functional terms and
provides few technical details about these components. For example, the
written description discloses a “controller, such as a service aware
management controller, for example, that includes one or more specially
programmed processors (not shown) operable to execute instructions stored
in one or more associated memories.” Spec. ¶ 32 (reference numbers
omitted). The written description explains that “the description that follows
will not repeatedly refer to the processors and memories though it should be
understood that these components may be used to provide the functions and
features embodied in exemplary controllers of the present invention.” Spec.
¶ 32; see also Spec. ¶ 58 (explaining that the disclosed invention may
include “specially programmed processors operable to execute instructions
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stored in one or more associated memories to complete one or more
integrated processes related to the inventive functions, and provide the
inventive features described herein as well as complete and provide
functions and features that are well known to those skilled in the art”). Given
the lack of implementation details in the written description for the recited
controller, processor, and memory, these elements amount to generic
computer components. See, e.g., Intellectual Ventures I LLC v. Erie Indem.
Co., 850 F.3d 1315, 1331 (Fed. Cir. 2017) (“The claimed mobile interface is
so lacking in implementation details that it amounts to merely a generic
component (software, hardware, or firmware) that permits the performance
of the abstract idea, i.e., to retrieve the user-specific resources.”).
Claim 6 uses these generic computer components as tools to
implement the recited abstract idea. See Appeal Br. 16. Using generic
computer components in this way does not integrate the abstract idea into a
practical application. See, e.g., Alice, 573 U.S. at 223–24 (“[W]holly generic
computer implementation is not generally the sort of ‘additional featur[e]’
that provides any ‘practical assurance that the process is more than a drafting
effort designed to monopolize the [abstract idea] itself.’” (second and third
alterations in original) (quoting Mayo, 566 U.S. at 77)); Intellectual Ventures
I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015)
(“Steps that do nothing more than spell out what it means to ‘apply it on a
computer’ cannot confer patent-eligibility.”). Thus, considering the
additional element recited in claim 6 along with the limitations that recite an
abstract idea, both individually and combination, we determine that claim 6
does not integrate the recited abstract idea into a practical application.
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Because claim 6 recites an abstract idea and does not integrate the abstract
idea into a practical application, claim 6 is directed to an abstract idea.
Appellant asserts that Examiner erred because the Examiner “failed to
interpret” claim 6 “in light of the specification” as required by Enfish, LLC
v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). Appeal Br. 5; see also
Reply Brief 3–4, January 30, 2019 (Reply Br.). Appellant contends that
“both the specification and [claim 6] set forth improvements to an existing
technology, namely providing a more complete topology of a data center and
correlating such a topology with services supported by the data center.”
Reply Br. 11–12; see also Appeal Br. 6–7.
Appellant has not persuaded us that the Examiner erred. The
Examiner explicitly considered claim 6 in light of the specification and
determined that claim 6 was not directed toward an improvement in
technology because the claim “merely presented abstract ideas of a solution
[to] problems presented in the” written description “without reciting any
particular implementation of the solution itself.” Final Act. 14–15; see also
Ans. 4–10. We see no error in this determination. As discussed above, claim
6 recites a series of broadly worded, functional limitations. Claim 6
generally recites the functions that the claimed invention performs but does
not meaningfully limit how the claimed invention performs those functions.
The Federal Circuit has explained that this type of functional, result-oriented
claim does not provide a technological improvement. See, e.g., Interval
Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1345 (Fed. Cir. 2018)
(determining that a claim component “encompasses a patent-ineligible
abstract concept rather than an arguably technical improvement” because the
component “simply demands the production of a desired result . . . without
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any limitation on how to produce that result”); In re Rosenberg, No. 2019-
2251, 2020 WL 2989246, at *3 (Fed. Cir. June 4, 2020) (determining that a
claim recites “at best an improvement on an abstract process itself and not a
technical improvement, given the broad, non-specific nature of the claim”);
In re Gopalan, No. 2019-2070, 2020 WL 1845308, at *4 (Fed. Cir. Apr. 13,
2020) (determining that the claims at issue “do not embody a concrete
solution to a problem because they lack the specificity required to transform
a claim from one claiming only a result to one claiming a way of achieving
it.” (quotation marks omitted)). And if Appellant relies on the written
description to supply the details missing from claim 6, we cannot read
limitations from the written description into the claim when determining
what the claim is directed to. See, e.g., ChargePoint, Inc. v. SemaConnect,
Inc., 920 F.3d 759, 769 (Fed. Cir. 2019) (explaining that, when determining
what a claim is “directed to,” “the specification cannot be used to import
details from the specification if those details are not claimed”); Am. Axle &
Mfg., Inc. v. Neapco Holdings LLC, 939 F.3d 1355, 1363 (Fed. Cir. 2019)
(“We have repeatedly held that features that are not claimed are irrelevant as
to step 1 or step 2 of the Mayo/Alice analysis.”); Synopsys, Inc. v. Mentor
Graphics Corp., 839 F.3d 1138, 1149 (Fed. Cir. 2016) (“The § 101 inquiry
must focus on the language of the Asserted Claims themselves.”).
Inventive Concept
Finally, we consider whether claim 6 has an inventive concept, that is,
whether the claim has additional elements that “‘transform the nature of the
claim’ into a patent-eligible application.” Alice, 573 U.S. at 217 (quoting
Mayo, 566 U.S. at 78, 79). This requires us to evaluate whether the
additional claim elements add “a specific limitation or combination of
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limitations that are not well-understood, routine, conventional activity in the
field” or “simply append[] well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality.”
Revised Guidance, 84 Fed. Reg. at 56.
As discussed above, the only additional element recited in claim 6 is
“a controller comprising a specially programmed processor operable to
execute instructions stored in an associated memory to complete one or more
integrated processes.” Appeal Br. 16. As also discussed above, the written
description describes the recited controller, processor, and memory in
largely functional terms and provides few technical details about these
components. See, e.g., Spec. ¶¶ 32, 58. The written description thus shows
that these components are well understood, routine, and conventional. See In
re Myers, 410 F.2d 420, 424 (CCPA 1969) (“A specification is directed to
those skilled in the art and need not teach or point out in detail that which is
well-known in the art.”); see also USPTO, Memorandum on Changes in
Examination Procedure Pertaining to Subject Matter Eligibility, Recent
Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.) at 3 (Apr. 19,
2018), available at https://www.uspto.gov/sites/default/files/documents
/memo-berkheimer-20180419.PDF (explaining that a specification that
describes additional elements “in a manner that indicates that the additional
elements are sufficiently well-known that the specification does not need to
describe the particulars of such additional elements to satisfy 35 U.S.C.
§ 112(a)” can show that the elements are well understood, routine, and
conventional).
Claim 6 simply employs these conventional computer components to
perform the recited abstract idea. See Appeal Br. 16. This is not enough to
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provide an inventive concept. Alice, 573 U.S. at 223 (“[T]he mere recitation
of a generic computer cannot transform a patent-ineligible abstract idea into
a patent-eligible invention.”); Customedia Techs., LLC v. Dish Network
Corp., 951 F.3d 1359, 1366 (Fed. Cir. 2020) (explaining that “the invocation
of ‘already-available computers that are not themselves plausibly asserted to
be an advance . . . amounts to a recitation of what is well-understood,
routine, and conventional’” and determining that invoking a conventional
component “is insufficient to supply the required inventive concept”
(quoting SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1170 (Fed. Cir.
2018))). We therefore determine that claim 6 lacks an inventive concept.
Appellant contends that the Examiner erred because the Examiner
failed to “present evidence that the features of the claimed inventions are
widely prevalent in the relevant industry.” Reply Br. 1 (quotation marks
omitted). Appellant did not raise this argument in the Appeal Brief, despite
having the opportunity to do so. Appellant has therefore has forfeited this
argument. See 37 C.F.R. §§ 41.37(c)(1)(iv), 41.41(b)(2).
In any case, as discussed above, the written description establishes
that the recited additional element encompasses well understood, routine,
and conventional components. As for the other limitations recited in claim 6,
the Examiner was not required to show that these limitations are well
understood, routine, and conventional because the other limitations form part
of the recited abstract idea. See, e.g., Bridge & Post, Inc. v. Verizon
Commc’ns, Inc., 778 F. App’x 882, 892 (Fed. Cir. 2019) (“At Alice step two
we assess ‘whether the claim limitations other than the invention’s use of
the ineligible concept to which it was directed were well-understood,
routine, and conventional.’” (quoting BSG Tech LLC v. BuySeasons, Inc.,
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899 F.3d 1281, 1290 (Fed. Cir. 2018))); BSG Tech, 899 F.3d at 1290 (“[T]he
relevant inquiry is not whether the claimed invention as a whole is
unconventional or non-routine. . . . It has been clear since Alice that a
claimed invention’s use of the ineligible concept to which it is directed
cannot supply the inventive concept that renders the invention ‘significantly
more’ than that ineligible concept.” (first emphasis added)). We thus find
this argument unpersuasive.
Summary
We have considered Appellant’s remaining arguments and find them
unpersuasive. For at least the above reasons, we sustain the Examiner’s
rejection of claim 6 under § 101.
Section 103 Rejection
Claim 6 recites
parsing the received information from the one or more
non-virtual elements to generate, in combination with the
received information from the one or more configured agents, a
vertical and horizontal mesh network topology of the data center,
and to correlate the generated data center vertical and horizontal
mesh network topology with one or more services supported by
the data center.
Appeal Br. 16. In the Appeal Brief, Appellant asserts that “[c]ontrary to the
Examiner’s position, one skilled in the art would not equate Bird’s ‘mapping
of a business infrastructure’ with the claimed parsing.” Appeal Br. 14
(citation omitted). Appellant contends that Bardgett does not “make up for”
this deficiency because “Bardgett’s ‘logical topology with multiple layers’
. . . appears to be unrelated to the claimed parsing.” Appeal Br. 14.
Appellant also contends that the Examiner “completely ignore[d] the
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meaning of the claimed ‘generation of a vertical and horizontal mesh
network topology of a data center’ as would be readily understood by those
skilled in the art.” Appeal Br. 14
We find these arguments unpersuasive. Appellant does not explain
why Bird’s mapping of a business infrastructure differs from the claimed
parsing; Appellant simply asserts that they are different. See Appeal Br. 14.
This unsupported assertion does not show that the Examiner erred. Cf. In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that “the Board
reasonably interpreted Rule 41.37 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art”);
37 C.F.R. § 41.37(c)(1)(iv). For the same reason, Appellant’s conclusory
arguments that Bardgett’s logical topology does not teach the recited parsing
and that the Examiner ignored the meaning of the recited topology do not
persuade us that the Examiner erred. Appellant presents no persuasive
reasoning or evidence that shows the Bardgett’s logical topology does not
teach the recited parsing. See Appeal Br. 14. And Appellant does not explain
what the claimed topology means to one of ordinary skill in the art, let alone
explain why the Examiner’s rejection fails to account for this meaning. See
Appeal Br. 14. We thus find these arguments unpersuasive. Lovin, 652 F.3d
at 1357; 37 C.F.R. § 41.37(c)(1)(iv).
In the Reply Brief, Appellant argues for the first time that the
Examiner has not (1) explained how Bardgett’s teachings improve the
accuracy of Bird’s mapping and (2) shown that there would have been a
reasonable expectation of success in combining the teachings of Bird and
Bardgett in the claimed manner. See Reply Br. 13–15. Appellant has
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forfeited these arguments by failing to raise them in the Appeal Brief. See 37
C.F.R. §§ 41.37(c)(1)(iv), 41.41(b)(2). Appellant’s remaining arguments in
the Reply Brief about Bird and Bardgett are largely conclusory, see Reply
Br. 15–17, and thus unpersuasive.
For at least the above reasons, we sustain the Examiner’s rejection of
claim 6 under § 103. Because Appellant has not presented separate,
persuasive arguments for claims 7, 8, 10–17, 19, 20, 25–27, and 29–35, we
also sustain the Examiner’s rejection of these claims under § 103.
CONCLUSION
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
6–8, 10–17,
19, 20, 25–
27, 29–35
101 Eligibility
6–8, 10–
17, 19, 20,
25–27, 29–
35

6–8, 10–17,
19, 20, 25–
27, 29–35
103 Bird, Bardgett
6–8, 10–
17, 19, 20,
25–27, 29–
35

Overall
Outcome
6–8, 10–
17, 19, 20,
25–27, 29–
35

No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED