EMC IP Holding Company LLCDownload PDFPatent Trials and Appeals BoardJul 2, 20202019001882 (P.T.A.B. Jul. 2, 2020) Copy Citation 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. Appeal 2019-001882 Application 14/980,479 2 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.). Appeal 2019-001882 Application 14/980,479 3 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 Appeal 2019-001882 Application 14/980,479 4 “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 Appeal 2019-001882 Application 14/980,479 5 (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). Appeal 2019-001882 Application 14/980,479 6 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. Appeal 2019-001882 Application 14/980,479 7 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,” Appeal 2019-001882 Application 14/980,479 8 “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 Appeal 2019-001882 Application 14/980,479 9 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., Appeal 2019-001882 Application 14/980,479 10 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. Appeal 2019-001882 Application 14/980,479 11 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 Appeal 2019-001882 Application 14/980,479 12 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. Appeal 2019-001882 Application 14/980,479 13 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. Appeal 2019-001882 Application 14/980,479 14 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 Copy with citationCopy as parenthetical citation