EMC IP Holding Company LLC

Patent Trials and Appeals Board

Jul 2, 2020

2019001882 (P.T.A.B. Jul. 2, 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.
14/980,479 12/28/2015 Jeroen Zonneveld EMC-15-1121 7026
16019 7590 07/02/2020
Ryan, Mason & Lewis, LLP
2425 Post Road
Suite 204
Southport, CT 06890
EXAMINER
LIN, KATHERINE Y
ART UNIT PAPER NUMBER
2113
NOTIFICATION DATE DELIVERY MODE
07/02/2020 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):
ctoffice@rml-law.com
kmm@rml-law.com
mjc@rml-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEROEN ZONNEVELD, OMER SAGI,
NIMROD MILO, AMIHAI SAVIR,
and OSHRY BEN-HARUSH
____________

Appeal 2019-001882
Application 14/980,479
Technology Center 2100
____________

Before KALYAN K. DESHPANDE, CHARLES J. BOUDREAU,
and SHARON FENICK, Administrative Patent Judges.

FENICK, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–15. We have jurisdiction under
35 U.S.C. § 6(b)(1).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies EMC IP Holding Company LLC as
the real party in interest. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
Appellant’s invention “relates generally to system management, and
more particularly to . . . providing operation analytics related to information
technology systems.” Spec. ¶ 1.
Claims 1, 6, and 11 are independent. Claim 1, reproduced below, is
illustrative of the subject matter on appeal:
1. A method for providing operational analytics for an
information technology system, the method comprising:
receiving application data from a plurality of monitored
applications;
parsing the application data into a plurality of features
describing an operation of the plurality of monitored
applications;
incrementing a counter associated with at least one of the
plurality of features to normalize information from the parsed
application data;
creating a time series model from the counter;
calculating, using at least one processing device, one or
more residuals for the at least one feature based on a difference
between a count forecasted based on the time series model and
an actual count;
applying, using said at least one processing device, one or
more statistical distribution Mixture Models to the one or more
residuals to detect anomalies; and
deriving, using said at least one processing device, a
normalized system health score for the plurality of monitored
applications from the detected anomalies.
Appeal Br. 20 (Claims App.).
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REJECTION
Claims 1–15 stand rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter. Final Act. 3.
OPINION
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter, or [a] new and useful
improvement thereof.” 35 U.S.C. § 101. However, the U.S. Supreme Court
has long interpreted § 101 to “contain[] an important implicit exception:
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)).
In Alice, the Supreme Court reiterated the two-step framework
previously set forth in Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 75–77 (2012) “for distinguishing patents that claim laws of
nature, natural phenomena, and abstract ideas from those that claim patent-
eligible applications of those concepts.” Alice, 573 U.S. at 217. The first
step in this analysis is to “determine whether the claims at issue are directed
to one of those patent-ineligible concepts,” e.g., to an abstract idea. Id.
Concepts determined to be abstract ideas include certain methods of
organizing human activity, such as fundamental economic practices (id.
at 219–20; Bilski v. Kappos, 561 U.S. 593, 611 (2010)); mathematical
formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental
processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). If it is determined
that the claims are directed to a patent-ineligible concept, the second step of
the analysis requires consideration of the elements of the claims
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“individually and ‘as an ordered combination’” to determine whether there
are 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). “A claim that recites an abstract idea must include ‘additional
features’ to ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. at 221 (alterations in original) (quoting
Mayo, 566 U.S. at 77). In other words, the claims must contain an
“inventive concept,” or some element or combination of elements “sufficient
to ensure that the patent in practice amounts to significantly more than a
patent upon the [abstract idea] itself.” Id. at 217–18 (quoting Mayo, 566
U.S. at 72–73). “[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
at 221.
In January 2019, the PTO published revised guidance on the
application of § 101. 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”).2 “All
USPTO personnel are, as a matter of internal agency management, expected
to follow the guidance.” Id. at 51; see also October 2019 Update at 1.
Consistent with3 this guidance, we first look to whether the claim recites:

2 In October 2019, in response to received public comments, the PTO issued
a further memorandum clarifying the Revised Guidance. USPTO
Memorandum, October 2019 Update: Subject Matter Eligibility (Oct. 17,
2019), available at https://www.uspto.gov/sites/default/files/documents/
peg_oct_2019_update.pdf (“October 2019 Update”).
3 Our reviewing court has explained that the Revised Guidance “cannot
modify or supplant the Supreme Court’s law regarding patent eligibility, or
[our reviewing court’s] interpretation and application thereof.” In re Rudy,
956 F.3d 1379, 1383 (Fed. Cir. 2020). Our decision is based upon
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(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as fundamental economic
practices, or mental processes) (“Step 2A, Prong 1”); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)
(9th ed. Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong 2”).4
See Revised Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then (under “Step
2B”) look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, and conventional” in the field
(see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Revised Guidance, 84 Fed. Reg. at 56.
The Examiner determines that the claims recite “applying a
mathematical algorithm to collected and formatted data” and are thus
directed to an abstract idea, in particular mathematical relationships or
formulas. Final Act. 3–4. The Examiner further determines that the claims

applicable statutory authority and precedent of the United States Supreme
Court and Court of Appeals for the Federal Circuit and applies the analytical
framework set forth in the Revised Guidance in a manner consistent with
authority and precedent.
4 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See Revised Guidance, 84 Fed. Reg. at 54–55 (Section
III.A.2).
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do not include additional elements that are sufficient to amount to
significantly more than the abstract idea. Id. at 3. Specifically, the
Examiner finds that the claims “require no more than a generic computer to
perform generic computing functions” and that “[t]here is no improvement
in the operation of the computer itself.” Id. at 4.
Appellant argues that the claim elements amount to significantly more
than an abstract idea and, when considered in combination, recite an
unconventional technological solution to a technological problem. Appeal
Br. 7; Reply Br. 4, 9. Specifically, Appellant argues that the claims reflect
an improvement over existing monitoring techniques that did not adequately
analyze voluminous log data, allowing “information to be presented to the
system administrator in a more efficient and helpful manner,” “security
breaches to be less severe, systems to be kept online, [and] performance to
be maintained.” Reply Br. 5–6; Appeal Br. 7. Appellant further argues that
the claims do not preempt an abstract idea. Appeal Br. 4, 9–10. Finally,
Appellant argues that the Examiner’s rejection is not adequately supported
in accordance with the PTO’s Berkheimer Memorandum5 which clarifies
that an examiner’s conclusion that an element represents well-understood,
routine, conventional activity must be based upon a factual determination
supported in writing (Appeal Br. 6; Reply Br. 2–4), and that the Examiner’s
withdrawal of prior art rejections demonstrates that the claims include

5 “Changes in Examination Procedure Pertaining to Subject Matter
Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP,
Inc.)” (Apr. 19, 2018), https://www.uspto.gov/sites/default/files/documents/
memo-berkheimer-20180419.pdf.
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features that are not well-understood, routine, and conventional (Appeal
Br. 4, 14–16).
Step 2A, Prong 1
We agree with the Examiner that, based on the Revised Guidance, the
claims recite a judicial exception, i.e., an abstract idea. See Final Act. 3. In
particular, we agree with the Examiner that the claims recite mathematical
concepts. See id.
For example, independent claim 1 recites:
incrementing a counter associated with at least one of the
plurality of features to normalize information from the parsed
application data;
creating a time series model from the counter;
calculating, using at least one processing device, one or
more residuals for the at least one feature based on a difference
between a count forecasted based on the time series model and
an actual count;
applying, using said at least one processing device, one or
more statistical distribution Mixture Models to the one or more
residuals to detect anomalies; and
deriving, using said at least one processing device, a
normalized system health score for the plurality of monitored
applications from the detected anomalies.
In reciting the steps of “incrementing a counter . . . to normalize information
from the parsed application data” and “creating a time series model from the
counter,” claim 1 recites a mathematical calculation of the time series model,
as well as mathematical relationships between the count and the parsed
application data and between the count and the time series model (as do
independent claims 6 and 11 with corresponding limitations). In reciting
“calculating . . . one or more residuals . . . based on a difference between a
count forecasted based on the time series model and an actual count,”
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“applying . . . one or more statistical distribution Mixture Models to the one
or more residuals to detect anomalies,” and “deriving . . . a normalized
system health score . . . from the detected anomalies,” claim 1 recites
mathematical calculations of the residuals and normalized system health
score, as well as mathematical relationships between the forecasted and
actual counts and between the statistical distribution Mixture Models and the
residuals (as do independent claims 6 and 11 with corresponding
limitations). Accordingly, the claims recite a combination of mathematical
concepts and, thus, an abstract idea.
Step 2A, Prong 2
Because the claims recite an abstract idea, we next look to whether the
claims recite additional elements that integrate the abstract idea into a
practical application. Revised Guidance, 84 Fed. Reg. at 54. Claim
limitations that indicate integration into a practical application include
additional elements that reflect an improvement in the functioning of a
computer, or an improvement to other technology or technical field. Id. at
55. When a claim recites a judicial exception and fails to integrate the
judicial exception into a practical application, the claim is “directed to” the
judicial exception. Id. at 51.
We determine that the additional limitations recited in the claims on
appeal do not integrate the recited abstract idea into a practical application.
For example, claim 1 additionally recites “receiving application data from a
plurality of monitored applications” and “parsing the application data into a
plurality of features describing an operation of the plurality of monitored
applications.” These limitations are recited at a high level of generality (i.e.,
as general steps of gathering and classifying or filtering the data used to
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implement mathematical concepts to provide operational analytics for the
information technology system) and amount to insignificant pre-solution
activity. See Revised Guidance, 84 Fed. Reg. at 55; MPEP § 2106.05(g).
We agree with the Examiner that these additional elements of the
claims merely recite generic computer components that similarly fail to
integrate the recited abstract idea into a practical application. See Final Act.
3–4. For example, independent claim 1 recites a “processing device” and a
“counter.” These limitations are recited at a high level of generality, i.e., as
generic components performing generic computer functions of computer
processing and storage. As the Examiner points out, the claims merely
apply the abstract idea using generic computer components. See Ans. 3;
Revised Guidance, 84 Fed. Reg. at 55; MPEP § 2106.05(f). The claim
limitations do not include any particular machine that is integral to the claim.
See Revised Guidance at 55; MPEP § 2106.05(b).
Appellant argues that the claims “recite an enrichment of application
data from monitored applications” (Appeal Br. 11), thus reflecting an
improvement over existing monitoring techniques that did not adequately
analyze voluminous log data (id. at 7; Reply Br. 6). Appellant additionally
argues that the claims are similar to those found to be patentable in Amdocs
(Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir. 2016).
Appeal Br. 11.
We are unpersuaded by Appellant’s argument and agree with the
Examiner that the claims do not recite an “improvement in the operation of
the computer itself,” i.e., a technological improvement, in addition to the
abstract idea. Final Act. 4; Ans. 4, 7. As discussed above, the recited
“processing device” and “counter” used to implement the abstract idea (i.e.,
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mathematical concepts) are merely generic computer components
performing generic functions of computer processing and storage. Although
Appellant argues that the claims allow “information to be presented to the
system administrator in a more efficient and helpful manner,” “security
breaches to be less severe, systems to be kept online, [and] performance to
be maintained” (Reply Br. 5–6), the claims “do not require an arguably
inventive set of components or methods, such as measurement devices or
techniques, that would generate new data. They do not invoke any
assertedly inventive programming.” Elec. Power Grp., LLC v. Alstom S.A.,
830 F.3d 1350, 1355 (Fed. Cir. 2016).
In Amdocs (Israel) Ltd., cited by Appellant, “th[e] claim entail[ed] an
unconventional technological solution (enhancing data in a distributed
fashion) to a technological problem (massive record flows which previously
required massive databases).” Amdocs (Israel) Ltd., 841 F.3d at 1300.
Appellant does not describe, nor do we discern, how the claims entail an
unconventional technological solution, and we do not find Appellant’s
citation of Amdocs (Israel) Ltd. apposite.
The claims do not reflect an improvement in computer functionality or
to any other technology or technical field. See Revised Guidance, 84 Fed.
Reg. at 55; MPEP § 2106.05(a). Even in combination, the additional
limitations do not integrate the abstract idea into a practical application
because they do not impose any meaningful limits on practicing the abstract
idea. Accordingly, we agree with the Examiner that the claims are directed
to an abstract idea.
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Step 2B
Turning to Step 2B of the Revised Guidance, we determine that there
are no specific limitations beyond the judicial exception, i.e., the abstract
idea, that are not well-understood, routine, and conventional in the field. See
Alice, 573 U.S. at 225. Although Appellant argues that the Examiner’s
rejection is not supported in accordance with the PTO’s Berkheimer
Memorandum (Appeal Br. 6; Reply Br. 2–4), we determine that the
“processing device” and “counter” recited in claim 1 are mere recitations of
generic computer components performing generic computer functions that
are well-understood, routine, and conventional, and thus do not amount to
significantly more than the abstract idea. See Spec. ¶¶ 52 (describing the
computer system used to implement the claimed invention as a “[g]eneral
purpose computer 300 [that] may include processor 302” and generally
describing the processor as “a central processing unit (‘CPU’) or accelerated
processing unit (‘APU’)”), 27 (generally describing a “feature counter” as “a
software process for tracking features,” “stored using an in-memory data
structure” comprising “a shared memory space”); see also Berkheimer
Memorandum III.A.1 (a finding that an additional element is well-
understood, routine, and conventional can be supported by “[a] citation to an
express statement in the specification or to a statement made by an applicant
during prosecution that demonstrates the well-understood, routine,
conventional nature of the additional element(s)” such as by describing the
element “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)”).
Those additional elements amount to no more than implementation of the
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abstract idea using generic computer components and do not provide an
inventive concept to transform the abstract idea into a patent-eligible
invention. See Alice, 573 U.S. at 223–24.
Reevaluating the extra-solution activity of “receiving application data
from a plurality of monitored applications” and “parsing the application data
into a plurality of features describing an operation of the plurality of
monitored applications” (see Revised Guidance, 84 Fed. Reg. at 56 (stating
that a conclusion under Step 2A that an additional element is insignificant
extra-solution activity should be reevaluated in Step 2B)), we find nothing
unconventional in these steps of gathering and classifying or filtering data.
Appellant argues that the Examiner’s withdrawal of prior art
rejections demonstrates that the claims include features that are not
well-understood, routine, and conventional (Appeal Br. 4, 14–16) and that
the claim elements, when considered in combination, recite a “non-
conventional technical approach” (Reply Br. 4). As the Examiner points
out, the absence of a prior art rejection does not affect our determination of
§ 101 patent subject matter eligibility. See Ans. 6. Furthermore, our
reviewing court “do[es] not agree . . . that the addition of merely novel or
non-routine components to the claimed idea necessarily turns an abstraction
into something concrete.” Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709,
715 (Fed. Cir. 2014). Appellant has not shown that the claims on appeal
recite any additional limitations beyond the judicial exception that are not
well-understood, routine, and conventional in the field. Furthermore, we are
unpersuaded that the ordered combination is unconventional or amounts to
significantly more than the abstract idea to which the claims are otherwise
directed.
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Appellant further argues that the claims “recite a specific, discrete
implementation” of, and thus do not preempt, the abstract idea. Appeal
Br. 9. This argument is unavailing, as the absence of complete preemption
is not dispositive. See, e.g., Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788
F.3d 1371, 1379 (Fed. Cir. 2015) (“While preemption may signal patent
ineligible subject matter, the absence of complete preemption does not
demonstrate patent eligibility.”); Ultramercial, Inc. v. Hulu, LLC, 722 F.3d
1335, 1346 (Fed. Cir. 2013) (“[T]he Supreme Court has stated that, even if a
claim does not wholly pre-empt an abstract idea, it still will not be limited
meaningfully if it contains only insignificant or token pre- or post-solution
activity—such as identifying a relevant audience, a category of use, field of
use, or technological environment.”) (citations omitted), vacated and
remanded, WildTangent, Inc. v. Ultramercial, LLC, 573 U.S. 942 (2014)
(remanding for further consideration in light of Alice). Thus, even if the
claims do not preempt the abstract idea, that alone is insufficient to render
the claims patent-eligible.
Accordingly, considering the claim elements individually and as an
ordered combination, we agree with the Examiner that there are no
meaningful claim limitations that represent sufficiently inventive concepts to
transform the nature of the claims into a patent-eligible application of the
abstract idea. Appellant argues the dependent claims on the same basis as
the independent claims. Appeal Br. 7–8, 16–18.
For the foregoing reasons, we sustain the Examiner’s rejection of
claims 1–15 under 35 U.S.C. § 101.
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CONCLUSION
The Examiner’s rejection of claims 1–15 under 35 U.S.C. § 101 is
affirmed.
DECISION SUMMARY
In summary:

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

AFFIRMED

Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–15 101 Eligibility 1–15