Ex Parte Dong et al

Patent Trial and Appeal Board

Sep 18, 2018

12984019 (P.T.A.B. Sep. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/984,019 01/04/2011
79980 7590 09/20/2018
Keohane & D'Alessandro
1881 Western Avenue Suite 180
Albany, NY 12203
FIRST NAMED INVENTOR
Wei Shan Dong
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
END920l00l58US1 1529
EXAMINER
PEACHER, LORENA R
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
09/20/2018 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):
drubbone@kdiplaw.com
Docket@Kdiplaw.com
lcronk@kdiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WEI SHAN DONG, ROGERIO S. FERIS,
ARUN HAMP APUR, ZHONG BO JIANG,
SHILPA N. MAHATMA, WEI SUN, and LEXING XIE
Appeal2017-002009
Application 12/984,019 1
Technology Center 3600
Before BARBARA A. BENOIT, DAVID J. CUTITTA II, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1, 2, 4--7, 9-12, and 14--20. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 Appellants' Brief ("App. Br.") identifies International Business Machines
Corporation as the real party in interest. App. Br. 1.
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Application 12/984,019
CLAIMED SUBJECT MATTER
The claims are directed to a system and method for detecting failure
patterns for geographically dispersed physical assets. Spec. ,r 5. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method for mining failure association rules of
geographically dispersed physical assets, the method
compnsmg:
a computer system receiving a continuous stream of
internal attributes, external attributes, and a failure history of
each of the physical assets, the external attributes comprising
demographic information;
the computer system linking spatial and temporal
correlation of the internal attributes, external attributes, and the
failure history of each of the physical assets in the continuous
stream to form an asset failure pattern;
the computer system extracting, automatically, spatio-
temporal information from the internal attributes, external
attributes, and the failure history of each of the physical assets;
the computer system continuously quantilizing,
automatically, the spatio-temporal information;
the computer system receiving each of the following:
joined data including internal attributes, external
attributes, and a failure history of each of the physical assets, and
the quantilized spatio-temporal information; and
the computer system outputting a set of failure association
rules for each of the physical assets based on an application of an
association rule mining algorithm to the combined input of the
quantilized spatio-temporal information-and the joined data that
finds associations between the internal and external attributes
and failures in the failure history.
App. Br. 17 (Claims Appendix).
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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Busche US 6,496,814 B 1 Dec. 17, 2002
Hala US 6,026,348 Feb. 15, 2000
Horvitz US 2009/0002148 Al Jan. 1, 2009
Mennis and Liu, "Mining Association Rules in Spatio-Temporal Data: An
Analysis of Urban Socioeconomic and Land Cover Change,"
TRANSACTIONS IN GIS, 9(1):5-17, 2005 ("Mennis")
Kim, Younghee et al., "Mining Association Rules for RFID Data with
Concept Hierarchy," ICACT, Feb. 15-18, 2009 ("Kim").
REJECTIONS
Claims 1, 2, 4--7, 9-12 and 14--20 stand rejected under 35 U.S.C.
§ 101 as being directed to patent-ineligible subject matter. Final Act. 4--5.
Claims 1, 2, 4--7, 9, 11, 12, 14, and 16-19 stand rejected under
35 U.S.C. § I03(a) as being unpatentable over Busche in view of Mennis.
Final Act. 6-17.
Claims 10 and 15 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Busche, Mennis, and Hala. Final Act. 17-18.
Claim 20 stands rejected under 35 U.S.C. § I03(a) as being
unpatentable over Busche, Horvitz, Mennis, and Kim. Final Act. 19.
DISCUSSION
35 U.S.C. § 101 REJECTION
Legal Standard for Patent Eligibility
In issues involving subject matter eligibility, our inquiry focuses on
whether the claims satisfy the two-step test set forth by the Supreme Court in
Alice Corp. v. CLS Banklnt'l, 134 S. Ct. 2347 (2014). The Supreme Court
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instructs us to "first determine whether the claims at issue are directed to a
patent-ineligible concept," id. at 2355, and, in this case, the inquiry centers
on whether the claims are directed to an abstract idea. If the initial threshold
is met, we then move to the second step, in which we "consider the elements
of each 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." Id. (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)). The Supreme
Court describes the second step as a search for "an 'inventive concept'-i.e.,
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."' Id. ( quoting Mayo, 566 U.S. at
72-73).
Examiner's Findings
The Examiner rejects the claims under the two-step Alice framework.
Under the first step, the Examiner determines the claims are directed to an
abstract idea:
Claims 1, 2, 4--7, 9-12 and 14--20 are directed to the abstract idea
of data mining failure association rules, which is considered an
idea of itself. The process of receiving a continuous stream of
internal, external attributes and failure history of physical assets,
linking spatial and temporal correlation of internal, external
attributes and failure history, quantilizing spatio-temporal
information, combining the attributes and failure history of
physical assets and outputting failure association rules all
describe the abstract idea.
Final Act. 4--5.
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Having found the claims to be directed to an abstract idea, the
Examiner proceeds to the second step of the Alice inquiry, finding the claims
do not possess a sufficient inventive concept under Alice step 2:
The claims do not include additional elements that are sufficient
to amount to significantly more than the judicial exception
because linking spatial temporal correlation of internal attributes,
external attributes and failure history to form an asset failure
pattern is comparing and analyzing data to determine patterns
(e.g. pre-solution activity); quantilizing spatio-temporal
information is associating a metric to the data; and outputting a
set of failure association rules for each physical asset based on
an application of an association rule mining algorithm is
organizing information through mathematical correlations. The
elements of a computer system and a non-transitory computer
readable medium do not provide significantly more than further
narrowing the abstract idea to a technological environment. None
of the imitations considered as an ordered combination, provide
eligibility, because taken as a whole the claims instruct the user
to implement the abstract idea with routine and conventional
activity.
Final Act. 5.
Appellants' Contentions
Appellants present several arguments in favor of eligibility. With
respect to Alice step 1, Appellants argue the Examiner's characterization of
the claims is inaccurate, and "the field to which the claimed invention is
directed can, broadly, be classified as streaming data-based predictive
analysis" which includes "improvements ... [that] can include system
diagnostic solutions; process completion identification solutions; solutions
for identifying, and/ or correcting errors in a process or system and/ or the
like. App. Br. 10. Appellants contend finding "patent applications ... in
this subject area as being patent ineligible would [improperly] preclude
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improvements to all data collection-based diagnostic software, process flow
analysis/correction software, and/or other such solutions that collect data and
perform in-line diagnostics in a computer environment from also being
patent ineligible." App. Br. 10-11. Appellants liken their claims to those
found eligible in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245
(Fed. Cir. 2014) and in Cal. Inst. of Tech. v. Hughes Communs., Inc., 59 F.
Supp. 3d 974 (C.D. Cal 2014), arguing that they are eligible because they
"overcome a problem specifically arising in the realm of computing,"
namely the problem of "maintaining of a computer infrastructure in light of
the varying rates of failure of different hardware components." App. Br. 11.
Appellants' also argue that the claims are not directed to an abstract
idea because they pose no risk of preemption. App. Br. 12. Appellants
contend "the specific limitations included in the claimed invention limit the
subject matter to [a] particular environment" and that "the invention as
claimed is drawn to only a small subset of the overall subject area of
streaming data-based predictive analysis in a computer environment." App.
Br. 12.
With respect to the second step of the Alice inquiry, Appellants argue
the claims amount to significantly more than the abstract idea because
"embodiments of the invention herein are, in fact, rooted in computer
technology" and that "[ t ]he limitations of the claims are indivisible from
computer technology." App. Br. 9. Appellants emphasize that the claims
involve "continuously" performing various operations on data using "a
series of computer-automated steps" and that the amount of data and
continuous nature of processing "precludes the feasibility of a human
performing these processes." App. Br. 10. Appellants further argue for
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eligibility because "it would not be reasonable to imagine that a human
being could execute all of [the claim] elements continuously in his/her head
as an abstract idea. The elements are complex and the process is intricate."
App. Br. 11. According to Appellants, "[t ]he combination of elements, both
in their number AND nature, make the implementation by a computer
necessary and inherent." App. Br. 11.
Analysis
We do not find Appellants' arguments persuasive, and we address
each argument in tum.
In considering Appellants' first argument, we are mindful that our
reviewing court instructs us that the "decisional mechanism" for determining
whether a claim is directed to an abstract idea compares the claim to those
claims previously found to have been directed to abstract ideas in other
cases. Amdocs (Isr.) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1294
(Fed. Cir. 2016) ("[T]he decisional mechanism courts now apply is to
examine earlier cases in which a similar or parallel descriptive nature can be
seen-what prior cases were about, and which way they were decided.").
Appellants argue the Examiner's characterization of the claims as being
directed to "data mining failure association rules" is overly broad because
they are better described as being directed to "streaming data-based
predictive analysis," and that the claims are similar to those found eligible in
DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) and
in Cal. Inst. of Tech. v. Hughes Communs., Inc., 59 F. Supp. 3d 974 (C.D.
Cal 2014) ("CalTech"). The problem with Appellants' argument is that even
if their characterization of the claims is correct, the claims are still directed
to an abstract idea because, applying the decisional mechanism as instructed
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by our reviewing court, we find the claims more similar to those found
ineligible in Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed.
Cir. 2016) than to those found eligible in the DDR Holdings and CalTech
cases relied upon by Appellants.
In Electric Power Group, the Federal Circuit addressed a claim drawn
to a "method of detecting events on an inter-connected electric power grid in
real time over a wide area and automatically analyzing the events on the
interconnected power grid." Id. at 13 51. The Federal Circuit found the
claim directed to an abstract idea because "the claims fall into a familiar
class of claims 'directed to' a patent-ineligible concept. The focus of the
asserted claims [] is on collecting information, analyzing it, and displaying
certain results of the collection and analysis." Id. at 1353. Focusing on the
nature of the invention, the court determined because "[t]he advance they
purport to make is a process of gathering and analyzing information of a
specified content, then displaying the results, and not any particularly
inventive technology for performing those functions," the claims were
"directed to an abstract idea." Id at 1354.
Appellants' claims bear substantial similarity to those found to be
abstract in Electric Power Group. For example, the invention in Electric
Power Group was directed to "performing real-time performance monitoring
of an electric power grid by collecting data from multiple data sources,
analyzing the data, and displaying the results." Id. at 1351. More
specifically, the claims in Electric Power Group recited a real-time
monitoring process in which multiple-source data was gathered for
"detecting and analyzing events from the plurality of data streams ... in
which the metrics are indicative of events, grid stress, and/or grid instability"
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in order to "deriv[ e] a composite indicator of reliability that is an indicator of
power grid vulnerability." Id. at 1351-52 (quoting representative claim of
the subject patent). Similarly here, Appellants invention relates to
continuously receiving information from physical assets to determine failure
association rules by analyzing the received data. Thus, like the invention in
Electric Power Group, the claims here focus on the collection of detailed
information regarding operation of a large geographically dispersed system
for the purpose of identifying possible future problems and vulnerabilities.
In contrast, the cases relied upon by Appellants are directed to
inventions having clear differences from the invention claimed here. For
example, the invention in DDR Holdings related to preventing website
visitors from being directed away to third party websites. DDR Holdings,
773 F.3d at 1257 ("claims address the problem of retaining website visitors
that, if adhering to the routine, conventional functioning of Internet
hyperlink protocol, would be instantly transported away from a host's
website after 'clicking' on an advertisement and activating a hyperlink").
The claims in CalTech were "directed to a form of error correction code
called an irregular repeat and accumulate ('IRA') code." CalTech, 59
F.Supp.3d at 978. In short, neither of the cases relied upon by Appellants
provide subject matter for which "similar or parallel descriptive nature can
be seen," (Amdocs, 841 F.3d at 1294) to the extent the claims here parallel
those in Electric Power Group.
We likewise do not find persuasive Appellants' argument that the
claims are eligible because they pose no risk of preemption, because our
reviewing court has held that lack of preemption is not dispositive of the
abstract idea inquiry. Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d
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1371, 1379 (Fed. Cir. 2015) ("While preemption may signal patent ineligible
subject matter, the absence of complete preemption does not demonstrate
patent eligibility") (internal quotation marks and citation omitted).
Appellants' Alice step 2 arguments are similarly unpersuasive. As
noted above, Appellants argue the claims amount to significantly more than
the abstract idea because they are rooted in technology and involve
"continuously" performing various operations on an amount of data that
"precludes the feasibility of a human performing these processes." App.
Br. 10.
We do not find this argument persuasive because the Federal Circuit
rejected similar argument in Electric Power Group, finding that "[m]erely
requiring the selection and manipulation of information-to provide a
'humanly comprehensible' amount of information useful for users by itself
does not transform the otherwise-abstract processes of information
collection and analysis." Electric Power Group, 830 F.3d at 1355.
Moreover, "the inability for the human mind to perform each claim step does
not alone confer patentability." FairWarning, IP, LLC v. Iatric Sys., Inc.,
839 F.3d 1089, 1098 (Fed. Cir. 2016).
In sum, we are not persuaded the Examiner erred in concluding the
claims are directed to ineligible subject matter. Accordingly, we sustain the
rejection under 35 U.S.C. § 101.
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35 U.S.C. § 103 REJECTION
Issue
Whether the Examiner erred in finding Busche teaches or suggests
"receiving a continuous stream of ... external attributes comprising
demographic information," as recited in claim 1.
Analysis
In rejecting claim 1, the Examiner finds Busche and Mennis teach
"receiving a continuous stream of ... external attributes comprising
demographic information." Final Act. 9, 3--4 (providing additional
explanation); see also Ans. 5-6 and 21-23.
Appellants argue the Examiner has erred because "Busche teaches
manual entry and transmission of data and not a continuous stream of data."
App. Br. 14 (citing Busche col. 10, 11. 61---64). Appellants further contend
Busche "fails to teach continuous reading of the external attributes that
comprise demographic data." Id. Appellants also argue the SKADA
monitoring system described in Busche does not clearly have the capability
to provide data in a continuous stream and that the correlations taught in
Busche do not result in an asset failure pattern. Reply Br. 4--5. Finally,
Appellants argue that the Examiner's reliance on Mennis is improper
because "it is in the area of the social sciences." Reply Br. 5.
We are not persuaded by Appellants' arguments. Appellants argue
Busche does not teach a continuous stream of data because it teaches manual
entry by technicians. App. Br. 14 (citing Busche col. 10, 11. 61-64).
However, Busche also teaches "[i]n other cases, such as a utility system with
a SKADA monitoring system connected to the data warehouse, this
information would be entered automatically into the data warehouse."
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Busche col. 10, 11. 64---67. Busche also teaches that "[t]his invention
concerns the use of all data entered into the data warehouse without regard
to the source, whether it be automatically detected as with a SKADA or by
manual entry as might be required by a repair technician." Busche col. 11,
11. 3-7. Thus, Busche is not limited to manual entry as Appellants allege.
Appellants also argue Busche does not teach the use of demographic
data. However, we agree with the Examiner that Busche teaches the recited
"demographic information." For example, Busche describes the use of
"demographic clustering" as part of a "complete solution that relates failures
and the potential for failure, all aspects associated with that infrastructure
piece collected data includes demographic information." Busche col. 14,
11. 5 8---60.
Appellants also argue that the SKADA monitoring does not result in a
"continuous stream" of data. We disagree. The SKADA system is
described as a monitoring system, which indicates that its receipt of data is
ongoing, i.e. continuous. We also are not persuaded that an asset failure
pattern is absent from Busche, as it teaches that the data collected by
SKADA provides "a complete solution that relates failures and the potential
for failure." Busche col. 10, 11. 58---60.
Finally, we do not find persuasive Appellants' contention regarding
the inapplicability of Mennis. Appellants contend that even though Mennis
teaches spatio-temporal analysis, it is in the area of social sciences and not
failure associations of physical assets. Reply Br. 5. However, Appellants'
argument is not based on the correct standard for what constitutes analogous
art. Prior art is analogous where either ( 1) the art is from the same field of
endeavor, regardless of the problem addressed, or (2) even if the reference is
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not within the same field of endeavor, the reference still is reasonably
pertinent to the particular problem with which the inventor is involved. In re
Ethicon, Inc., 844 F.3d 1344, 1349 (Fed. Cir. 2017) (internal citations and
quotations omitted). Appellants do not explain why Mennis, which relates
to "spatio-temporal data mining" is not at least "reasonably pertinent" to the
problems faced by the inventors in this case. Without any explanation for
why Mennis does not meet the standard for analogous art, we are not
persuaded the Examiner improperly combined the teachings of Mennis with
Busche in the manner claimed.
SUMMARY
Appellants' claims are similar to those found ineligible in Electric
Power Group. Consequently, we are not persuaded the Examiner erred in
rejecting the claims as being directed to patent ineligible subject matter
under 35 U.S.C. § 101. Appellants have not persuaded us the Examiner
erred in finding Busche and Mennis teach or suggest all limitations recited in
claim 1. Accordingly, we also sustain the rejection of claim 1 under 35
U.S.C § 103.
Appellants do not present separate arguments for patentability of any
other claims. Accordingly, we treat claim 1 as representative, and we
sustain the rejections of the remaining claims for the same reasons.
DECISION
We affirm the Examiner's rejections of claims 1, 2, 4--7, 9-12 and 14--
20.
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No time 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)(l )(iv).
AFFIRMED
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