Ex Parte Durham et al

Patent Trial and Appeal Board

Jun 29, 2018

13943408 (P.T.A.B. Jun. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/943,408 07/16/2013
45457 7590 07/03/2018
SCHWEGMAN LUNDBERG & WOESSNER/Intel
P.O. Box 2938
MINNEAPOLIS, MN 55402
David M. Durham
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.
884.E81US3 4325
EXAMINER
YUN, CARINA
ART UNIT PAPER NUMBER
2194
NOTIFICATION DATE DELIVERY MODE
07 /03/2018 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):
uspto@slwip.com
SLW@blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID M. DURHAM, TISSON MATHEW,
TRAVIS SCHLUESSLER, PRIY A RAJAGOP AL, and
HORMUZD M. KHOSRAVI
Appeal 2017-011315
Application 13/943,408
Technology Center 2100
Before CAROLYN D. THOMAS, JON M. JURGOV AN, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
LENTIVECH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants 1 appeal from the
Examiner's decision to reject claims 1, 2, 4--8, 10-14, and 16-18. Claims 3,
9, and 15 have been canceled. See App. Br. 15-18 (Claims App'x). We
have jurisdiction over the pending claims under 35 U.S.C. § 6(b ).
We affirm.
1 According to Appellants, the real party in interest is Intel Corporation.
App. Br. 2.
Appeal 2017-011315
Application 13/943,408
STATEMENT OF THE CASE
Appellants 'Invention
Appellants' invention generally relates to "resource management on a
host device and more particularly to secure host resource management."
Spec. i-f 2. Claim 1, which is illustrative of the claimed invention, reads as
follows:
1. A method, comprising:
querying, by an environment that is isolated from a host
device, at least one host device driver for event types supported
by the at least one host device driver, the at least one host device
driver being a part of a host of the host device, the environment
configured to execute code independently and securely isolated
from a host of the at least one host device driver, the environment
being communicatively coupled to the host while in operation,
the environment preventing the host from performing operations
that would alter, modify, read, or otherwise affect the resource
data record repository while the environment is in operation, and
an event type is a logical grouping of a plurality of events, an
event being a device operating state value;
receiving, by the environment, the event types from the at
least one device driver;
caching the event types in a resource data record
repository stored in the environment;
receiving a request from a capability module for an event
type;
determining which of the event types cached in the
resource data record repository match the request; and
subscribing the capability module to the event types
cached in the resource data record that matched the request
without re-querying the at least one device driver.
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References
The Examiner relies on the following prior art in rejecting the claims:
Novik et al.
Griffin et al.
Billau et al.
Friedman et al.
US 6,275,957 Bl
US 2002/0194496 Al
US 2005/0204366 Al
US 6,986,058B1
Rejections
Aug. 14, 2001
Dec. 19, 2002
Sept. 15, 2005
Jan. 10,2006
Claims 4, 10, and 16 stand rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite. Final Act. 2-3.
Claims 1, 2, 4--8, 10-14, and 16-18 stand rejected under 35 U.S.C.
§ 101 because the claimed subject matter is judicially-excepted from patent
eligibility under § 101. Final Act. 3.
Claims 1, 2, 4, 6-8, 10, 12-14, 16, and 18 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over the combination ofBillau,
Griffin, and Novik. Final Act. 4--9.
Claims 5, 11, and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Billau, Griffin, Novik, and Friedman.
Final Act. 9.
ANALYSIS
112, Second Paragraph Rejection
The Examiner rejects claims 4, 10, and 16 under 35 U.S.C. § 112,
second paragraph, as being indefinite because each of claims 4, 10, and 16
depend from a cancelled claim. Final Act. 3.
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Appellants do not substantively argue the rejection. Instead,
Appellants state that "[i]n the February 7, 2017 response to the Final Office
Action, Appellant[ s] amended claims 4, 10, and 16 to correct the
dependency of these claims" but the Examiner declined to enter the
amendments. Reply Br. 2.
Because the amendments were not entered by the Examiner and,
therefore, claims 4, 10, and 16 still depend from cancelled claims, we affirm
the Examiner's rejection of claims 4, 10, and 16 under 35 U.S.C. § 112,
second paragraph.
101 Rejection
We have reviewed Appellants' arguments regarding the Examiner's
rejection of claims 1, 2, 4--8, 10-14, and 16-18 under 35 U.S.C. § 101 and
find them unpersuasive for the reasons that follow.
Section 101 defines patentable subject matter: "Whoever invents or
discovers any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof, may
obtain a patent therefor, subject to the conditions and requirements of this
title." 35 U.S.C. § 101. The Supreme Court, however, has "long held that
this provision contains an important implicit exception" that "[l]aws of
nature, natural phenomena, and abstract ideas are not patentable." Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 70 (2012)
(quotation omitted). To determine patentable subject matter, the Supreme
Court has set forth a two part test.
"First, we determine whether the claims at issue are directed to one of
those patent-ineligible concepts" of "laws of nature, natural phenomena, and
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abstract ideas." Alice Corp. v. CLS Bankint'l, 134 S. Ct. 2347, 2355 (2014).
"The inquiry often is whether the claims are directed to 'a specific means or
method' for improving technology or whether they are simply directed to an
abstract end-result." RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322,
1326 (Fed. Cir. 2017). A court must be cognizant that "all inventions at
some level embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas" (Mayo, 566 U.S. at 71), and "describing the
claims at ... a high level of abstraction and untethered from the language of
the claims all but ensures that the exceptions to § 101 swallow the rule."
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337 (Fed. Cir. 2016).
Instead, "the claims are considered in their entirety to ascertain whether their
character as a whole is directed to excluded subject matter." Internet
Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015).
In the second step, 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." Alice, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 79, 78).
The Supreme Court has "described step two of this analysis 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. (quotation omitted).
The Examiner finds the claims are directed to the abstract idea of
"querying for information, receiving the information, storing the
information, and performing analysis upon request based on the stored
information." Ans. 3. The Examiner finds the claimed "subscribing" "is
merely generating or displaying a result because it provides a report of
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conditions for the event type." Ans. 3 (citing Spec. i-f 41). The Examiner
further finds the claims do not recite significantly more than the abstract idea
because the additional elements recited in the claims (e.g., "an environment
that is isolated from a host device," "at least one host device driver," "the
resource data record repository," as recited in claim 1) "are simply generic
components in a computer system and [are recited at] a high level of
generality (i.e. generic hardware, generic modules with no specificity) and
do not add significantly more and do not improve the functioning of the
computer itself." Ans. 4.
Appellants argue "[i]n contrast to the Examiner's statements, the 200
plus words of claim 1, reciting device driver capability management with
caching to improve computer performance are not 'mental steps."' Reply
Br. 2. Appellants further argue:
The present claims are directed toward computer-
functionality improvements, like the claims of Enfish. For
example, the present claims are directly linked to computer
device drivers, managing device driver event types using a cache
to reduce driver queries while remaining responsive to queries
about those drivers. Also, contrary to the Examiner's feelings,
the host device, host device drivers, etc., are not generic in that
they define the technological elements in which this
improvement to computer operation runs.
Reply Br. 3. Appellants contend even if the claims are directed to an
abstract idea, the claims recite significantly more than the abstract idea and,
therefore, are directed to eligible subject matter under 35 U.S.C. § 101.
App. Br. 9. In particular, Appellants argue:
The Examiner's position does not look at the combination
of elements in the claims in arriving at the conclusion that there
is not significantly more than "collecting and storing
information." Rather, the Examiner simply states that the
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additional elements are not enough. This is precisely the type of
unsupported opinion that cannot stand in for substantial
evidence, as required by the AP A. The Examiner must prove
that the additional elements do not amount to significantly more
than the alleged abstract idea. Further, in light of the fact that the
present claims are directly linked to computer device drivers and
managing device driver event types, it is clear that the additional
elements of the claims are directed to improving the functioning
of a computer, a class of "significantly more" specifically called
out by the Supreme Court in Alice.
App. Br. 9.
We do not find Appellants' arguments persuasive. Applying the first
step of the analysis, we agree with the Examiner that the claims are directed
to the abstract idea of collecting, storing, and analyzing information. Ans. 3.
Claim 1, for example, recites a method including collecting data ("querying
... at least one host device driver for event types supported by the at least
one host device driver;" "receiving ... the event types from the at least one
[host] device driver"); storing the collected data ("caching the event types");
analyzing the stored data ("receiving a request from a capability module for
an event type" and "determining which of the event types ... match the
request"); and storing a result of the analysis ("subscribing the capability
module to the event types ... that matched the request").
Claims of similar character have been deemed abstract by both the
Supreme Court and our reviewing Court. Cf Content Extraction and
Transmission LLC v. Wells Fargo Bank, National Ass 'n, 776 F.3d 1343,
1347 (Fed. Cir. 2014) ("collecting data, ... recognizing certain data within
the collected data set, and ... storing that recognized data in a memory");
Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)
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(claims directed to collection, manipulation, and display of data). That the
claims require
the at least one host device driver being a part of a host of the
host device, the environment configured to execute code
independently and securely isolated from a host of the at least
one host device driver, the environment being communicatively
coupled to the host while in operation, the environment
preventing the host from performing operations that would alter,
modify, read, or otherwise affect the resource data record
repository while the environment is in operation, and an event
type is a logical grouping of a plurality of events, an event being
a device operating state value,
does not cause the claims to be directed to eligible subject matter but merely
narrows the abstract idea to which the claims are directed.
Turning to the second step of the analysis, we agree with the
Examiner (Ans. 4), that finds the claims do not recite significantly more than
the abstract idea because the additional elements recited in the claims are
described in the Specification as conventional computer components
performing well-known, routine, and conventional functions to carry out the
claimed limitations. See e.g., Spec. i-fi-f 15-16, 18, 29, 35.
For the foregoing reasons, Appellants have not persuaded us of error
in the Examiner's rejection of claims 1, 2, 4--8, 10-14, and 16-18 under 35
U.S.C. § 101.
103 Rejections
Appellants contend the combination of Billau, Griffin, and Novik
does not teach or suggest
querying, by an environment that is isolated from a host
device, at least one host device driver for event types supported
by the at least one host device driver, the at least one host device
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driver being a part of a host of the host device, the environment
configured to execute code independently and securely isolated
from a host of the at least one host device driver, the environment
being communicatively coupled to the host while in operation,
the environment preventing the host from performing operations
that would alter, modify, read, or otherwise affect the resource
data record repository while the environment is in operation, and
an event type is a logical grouping of a plurality of events, an
event being a device operating state value; [and]
caching the event types in a resource data record
repository stored in the environment,
as recited in claim 1, and similarly recited in independent claims 7 and 13.
App. Br. 10-12; Reply Br. 4--5.
Regarding the disputed limitations, the Examiner finds Billau teaches
determining a set of functions of a virtual device driver by querying an I/O
adapter device driver. Final Act. 4--5 (citing Billau i-f 19). The Examiner
further finds Billau teaches that a configuration table or file could be written
that contains the available functions for the I/O adapter hosting device driver
and that the configuration table or file could be read to determine available
functions for the virtual hosted device driver. Final Act. 5 (citing Billau
i-f 40). Based on these findings, the Examiner concludes Billau teaches or
suggests the claimed "querying" and "caching" because:
The claims state "caching the event types in a resource
data repository stored in the environment." The examiner cited
to Billau i-f [0040] which states the configured table or file could
be written that contains the available functions for the I/O
adapter. This is stated after a discussion of querying I/O adapter
device driver to see which functions are supported by the adapter.
Therefore, Billau teaches a caching the event types in a resource
data record repository. Furthermore, the claim is not specific as
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it does not state the caching must take place after the querying.
The steps in the method are not ordered.
Ans. 5.
Appellants argue Billau fails to teach or suggest the claimed
"querying" and "caching" because Billau teaches writing the functions to the
configuration table or file as an alternative to querying the I/O adapter
device driver. App. Br. 10-11 (citing Billau i-f 40). We agree.
Billau teaches "[ o ]ne of the significant functions provided by the I/O
hosting interface 550 is the ability for the virtual hosted device driver 540 to
query the I/O adapter hosting device driver 560 to determine what functions
are supported by the I/O adapter 390." Billau i-f 40. Billau further teaches:
One suitable way to configure the virtual hosted device
driver 540 is to query the I/O adapter hosting device driver 560
for its available functions. Of course, other methods of
communicating the available functions of the I/O adapter hosting
device driver 560 to the virtual hosted device driver 540 are
within the scope of the preferred embodiments. For example, a
configuration table or file in the partition manager could be
written that contains the available functions for the I/O adapter
hosting device driver, and this table or file could be read to
determine available functions for the virtual hosted device driver.
Billau i-f 40 (emphasis added). Thus, Billau teaches configuring the virtual
hosted device driver by querying the I/O adapter hosting device driver or by
reading the configuration table or file.
Additionally, the Examiner finds Novik teaches or suggests the
disputed limitations because:
Novik teaches that query for a specific event using a filter.
It retrieves the event by using the filter to find the specific event.
When the event is reported it returned. Novik teaches caching
(i.e. storing) by disclosing that the events are registered in the
repository. The repository being the storage where the events are
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cached. Further, it is stated that the registration is done based on
a query. Therefore, the results of cache is linked to the querying.
Even as such, the claims are still not narrow enough to require
the caching to be done after the query. There is no order of the
claim limitations present in the claims.
Ans. 6.
Appellants argue Novik teaches that registrations are expressed "in
the form of queries" and that the purpose of the query is to "filter events, not
retrieve them." App. Br. 11-12 (citing Novik 3:38--42, 4:28-30).
Appellants further argue registering (e.g., storing) events in a repository, as
taught by Novik, does not teach or suggest caching event types in a resource
data record repository, as required by claim 1, because "caching is not
synonymous with 'storing,' it is a specific type of storage to improve speed
of a computer." Reply Br. 5. We agree.
Novik describes "a central repository wherein event subscribers
register the types or classes of events for which they require notification and
event providers register the types or classes of events they are capable of
detecting and for which they will provide notifications." Novik 3:33-37.
Novik teaches "[t]he registrations, both by providers and subscribers, are
made according to a standardized hierarchical classification of event classes
and are preferably expressed in the form of queries." Id. at 37--41. Thus,
Novik teaches that the types of events are stored in the central repository
based on event providers providing a registration expressed in a form of a
query and not by querying at least one host driver, as required by claim 1.
For the foregoing reasons, we are persuaded the Examiner erred in
finding the cited references teach or suggest the disputed limitations.
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Accordingly, we do not sustain the Examiner's rejection under
35 U.S.C. § 103(a) of claim 1; and claims 2, 4--8, 10-14, and 16-18, which
recite corresponding limitations.
DECISION
We affirm the Examiner's rejection of claims 4, 10, and 16 under
35 U.S.C. § 112, second paragraph.
We affirm the Examiner's rejection of claims 1, 2, 4--8, 10-14, and
16-18 under 35 U.S.C. § 101.
We reverse the Examiner's rejections of claims 1, 2, 4--8, 10-14, and
16-18 under 35 U.S.C. § 103(a).
Since at least one rejection encompassing all claims on appeal is
affirmed, the decision of the Examiner is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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