Ex Parte Murphey et al

Patent Trials and Appeals BoardMar 29, 2019

14448081 - (D) (P.T.A.B. Mar. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/448,081 07/31/2014 124274 7590 04/02/2019 LOWENSTEIN SANDLER LLP / Splunk Patent Docket Administrator One Lowenstein Drive Roseland, NJ 07068 FIRST NAMED INVENTOR Lucas Murphey 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. SP0063.01US (L0009) 1063 EXAMINER PEACH, POLINA G ART UNIT PAPER NUMBER 2165 NOTIFICATION DATE DELIVERY MODE 04/02/2019 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): patents@lowenstein.com patentofficecorrespondence@splunk.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LUCAS MURPHEY and DAVID HAZEKAMP 1 Appeal2018-004460 Application 14/448,081 Technology Center 2100 Before CAROLYN D. THOMAS, JASON V. MORGAN, and MICHAEL M. BARRY, Administrative Patent Judges. MORGAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Introduction This is an appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1-8, 10-25, and 31--42. Claims 9 and 26-30 are canceled. Appeal Br. 29, 32. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Appellant is the applicant and real party in interest, Splunk Inc. Appeal Br. 3. Appeal2018-004460 Application 14/448,081 Invention The Specification discloses a processing device that provides a wizard for generating a correlation search, "the wizard facilitating user input of (i) one or more search criteria ... , (ii) a triggering condition ... , and (iii) one or more actions to be performed" when the triggering condition is satisfied. Abstract. Representative claims (key limitations emphasized) 1. A method comprising: causing display of at least one graphical user interface for facilitating user input for generation of a correlation search of a data store, wherein the correlation search comprises a combination of a search query, a triggering condition, and one or more actions that automatically execute each time the triggering condition is satisfied, and wherein the data store comprises events, each event associated with a timestamp and including a portion of raw machine data reflecting activity in an information technology environment and produced by a component of that environment; receiving, via the at least one graphical user interface, the user input comprising: (i) a definition for the search query of the correlation search that includes filtering criteria for the events in the data store, the filtering criteria including at least a time range within which timestamps of the events are to fall to be within a scope of the search query; (ii) the triggering condition comprising criteria to evaluate filtered events that the search query produces when applied to the events of the data store; and (iii) the one or more actions that execute when the triggering condition is satisfied; persisting the correlation search by storing in memory for later selection or editing the definition for the search query, the triggering condition, and the one or more actions; and 2 Appeal2018-004460 Application 14/448,081 wherein the method is performed by one or more processing devices. 2. The method of claim 1, wherein causing generation of the correlation search comprises: receiving the one or more search criteria; causing display of the search query in the at least one graphical user interface; receiving a user request to test an execution of the search query; causing the execution of the search query; and causing display of results from the search query. Rejections The Examiner rejects claims 1-8, 10-25, and 31--42 under 35 U.S.C. Â§ 101 as being directed to patent-ineligible subject matter. Ans. 3-11. The Examiner rejects claims 1-8, 12-16, 19-252, and 34--42 under 35 U.S.C. Â§ 103 as being unpatentable over Jones et al. (US 2009/0228464 Al; published Sept. 10, 2009) ("Jones") and Leonard et al. (US 2014/ 0019909 Al; published Jan. 16, 2014) ("Leonard"). Final Act. 3-13. The Examiner rejects claim 10 under 35 U.S.C. Â§ 103 as being unpatentable over Jones, Leonard3, and Li et al. (US 2008/0235199 Al; published Sept. 25, 2008) ("Li"). Final Act. 13-14. The Examiner rejects claim 11 under 35 U.S.C. Â§ 103 as being unpatentable over Jones, Leonard3, and Rajesh Krishnan et al., The SPINDLE disruption-tolerant networking system, MILCOM 2007 - IEEE 2 The Examiner erroneously lists canceled claims 26-29 as being rejected. Final Act. 3. 3 The Examiner erroneously omits Leonard from the rejections of claims 10, 11, 17, 18, and 31-34 even though Leonard is used in the rejection of claim 1, from which these claims depend. Final Act. 13. 3 Appeal2018-004460 Application 14/448,081 Military Communications Conference, 1-7 (2007) ("Krishnan"). Final Act. 14. The Examiner rejects claim 17 under 35 U.S.C. Â§ 103 as being unpatentable over Jones, Leonard4, and Lee et al. (US 8,589,399 Bl; issued Nov. 19, 2013) ("Lee"). Final Act. 15. The Examiner rejects claim 18 under 35 U.S.C. Â§ 103 as being unpatentable over Jones, Leonard4, and Koetke et al. (US 2004/0098478 Al; published May 20, 2004) ("Koetke"). Final Act. 15-16. The Examiner rejects claims 31-34 under 35 U.S.C. Â§ 103 as being unpatentable over Jones, Leonard4, and Dejan Sunderic and Tom Woodhead, SQL Server 2000 Stored Procedure Programming, Osbourne/McGraw-Hill (2001) ("Sunderic"). Final Act. 16-17. 35 U.S.C. Â§ 101 Principles of law To be statutorily patentable, the subject matter of an invention must be a "new and useful process, machine, manufacture, or composition of matter, or [a] new and useful improvement thereof." 35 U.S.C. Â§ 101. There are implicit exceptions to the categories of patentable subject matter identified inÂ§ 101, including: (1) laws of nature; (2) natural phenomena; and (3) abstract ideas. Alice Corp. v. CLS Bankint'l, 573 U.S. 208,216 (2014). The Supreme Court has set forth a framework for distinguishing patents with claims directed to these implicit exceptions "from those that claim patent- eligible applications of those concepts." Id. at 217 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66 (2012)). The 4 See supra note 3. 4 Appeal2018-004460 Application 14/448,081 evaluation follows a two-part analysis: (1) determine whether the claim is directed to a patent-ineligible concept, e.g., an abstract idea; and (2) if so, then determine whether any element, or combination of elements, in the claim is sufficient to ensure that the claim amounts to significantly more than the patent-ineligible concept itself. See id. at 217-18. Although the second step in the Alice/Mayo framework is termed a search for an "inventive concept," the analysis is not an evaluation of novelty or non-obviousness, but rather a search for "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. at 217-18 ( citation omitted). A novel and nonobvious claim directed to a purely abstract idea is, nonetheless, patent-ineligible. See Mayo, 566 U.S. at 90; see also Ass 'n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013) ("Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the Â§ 101 inquiry"). The U.S. Patent and Trademark Office (USPTO) recently published revised guidance on the application of the two-part analysis. USPTO Memorandum of January 7, 2019, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 ("Memorandum"). Under that guidance, we first look to whether the claim recites: ( 1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes) (see id. at 54 ( step 2A - prong one)); and 5 Appeal2018-004460 Application 14/448,081 (2) additional elements that integrate the judicial exception into a practical application (see id. at 54--55 (step 2A-prong two); MPEP Â§ 2106.05(a}-(c), (e}-(h)). Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim: (3) adds a specific limitation beyond the judicial exception that are not "well-understood, routine, conventional" in the field (see MPEP Â§ 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 Memorandum, 84 Fed. Reg. at 56 (step 2B). Memorandum step 2A-prong one The Examiner determines that the subject matter of claim 1 "is similar to concepts identified as abstract ideas by the courts, such as 'Generating tasks [based on] rules ... to be completed upon the occurrence of an event.'" Ans. 4 ( citing Accenture Glob. Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1344 (Fed. Cir. 2013)) (alterations in original). Appellant contends the Examiner erred by merely listing "select features of independent claim 1, without performing any analogizing of the present claims to the claims of the Accenture case." Reply Br. 4. Claim 1 recites: (1) "causing display of at least one graphical user interface for facilitating user input"; (2) "receiving, via the at least one graphical user interface, the user input"; and (3) "storing in memory for later selection or editing" the received user input. That is, claim 1 recites an information collection and storage process. Collecting and storing 6 Appeal2018-004460 Application 14/448,081 information is a type of mental process (i.e., observing and remembering) that represents an abstract idea. See, e.g., Fair Warning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093 (Fed. Cir. 2016) (quoting Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir.2016)) ("the 'realm of abstract ideas' includes 'collecting information, including when limited to particular content."'); In re TL! Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016) ("classifying and storing digital images in an organized manner" was an abstract idea). Therefore, despite Appellant's arguments, we agree with the Examiner that claim 1 is directed to an abstract idea. Memorandum step 2A-prong two Appellant argues "the computer implementation of claim 1 removes the guess work from input of correlation search component in advance of performing an generating a correlation search, with the application of the specific, limited algorithmic steps as recited." Reply Br. 7. Appellant also argues the method of claim 1 provides for "automation of further tasks because the processor is able to both recall a previously generated correlation search without having to facilitate additional user input to generate the correlation search again according to further." Id. at 8. Appellant contends that "improving the efficiency of computer software performance on a computer has recently been considered sufficient improvement, as has a software invention that obviates inconvenient adaptation requirements between a database programmer and database users in database formation and use." Id. at 7 Merely collecting information limited to particular content does not change the character of the collected information. See Elec. Power Grp., 7 Appeal2018-004460 Application 14/448,081 830 F.3d at 1353. Importantly, the method of claim 1 does not transform or store the collected information in a manner that improves computer technology. The claim recites intended uses of the collected information- for example, by specifying filtering and triggering criteria, as well as actions to execute. But claim 1 does not include steps that make use of such criteria or execute the actions. See also Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014) (preamble recitation of a digital image reproduction system merely stated the intended purpose or intended use of the invention and, therefore, did not make the claimed abstract idea patent-eligible). Furthermore, the step of "persisting the correlation search" generically stores data in memory rather than in a specific manner that improves computer capabilities. Compare with Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336, 1339 (Fed. Cir. 2016) (claims reciting a self-referential table were "directed to a specific implementation of a solution to a problem in the software arts" and did not merely invoke computers as a tool). For these reasons, despite Appellant's arguments, we determine that the additional elements of claim 1 do not integrate the abstract idea of collecting and storing information into a patent-eligible practical application. Memorandum step 2B Appellant argues claim 1 recites significantly more than the underlying abstract idea because "[i]t is unconventional to facilitate generation of a correlation search of machine data via graphical user interfaces and persist the generated correlation search for future use in processing of large volumes of the machine data." Reply Br. 12. It is conventional, however, to collection and store information to facilitate 8 Appeal2018-004460 Application 14/448,081 additional activities. How the information is to facilitate the additional activities does not suffice to make otherwise conventional information collection and storage steps patent-eligible. See Elec. Power Grp., 830 F .3d at 1353. Furthermore, the additional recitations of claim 1, such as the "memory" and "processing devices," are both claimed and disclosed generically. The Specification discloses, for example, that a "data store can be a persistent storage that is capable of storing data." Spec. ,r 143. Such storage can be local or remote, magnetic, optical, solid state, electronic or the like, and can be monolithic or distributed. Id. The Specification also discloses that a processing device "represents one or more general-purpose processing devices such as a microprocessor, central processing unit, or the like." Id. ,r 207. A general-purpose processing device may execute instructions from complex, reduced, or very long word instruction sets, or some other instruction set. Id. A special- purpose device may be an application specific integrated circuit, field programmable array, digital signal processor, network processor, or the like. Id. These generic descriptions show that the computer technologies are merely used as tools for applying the abstract idea-a mental process in the form of collecting and storing information. That is, the claimed method's use of these technologies represents well-understood, routine, conventional activities. Therefore, claim 1 lacks any element, or combination of elements, sufficient to ensure that the claim amounts to significantly more than the patent-ineligible abstract idea. 9 Appeal2018-004460 Application 14/448,081 Accordingly, we sustain the Examiner's 35 U.S.C. Â§ 101 rejection of claim 1, and claims 2-8, 10-25, and 31--42, which Appellant does not argue separately. Reply Br. 12. 35 U.S.C. Â§ 103----CLAIMS 1, 3, 4, 6-8, 10-19, 22-25, AND 31--42 In rejecting claim 1 as obvious, the Examiner finds Jones, which discloses "a trigger condition associated with [a] request" (Jones ,r 91), teaches or suggests a triggering condition comprising criteria to evaluate filtered events that a search query produces. Final Act. 4 (citing, e.g., Jones ,r,r 99, 287-88, 299); see also Adv. Act. 2 (June 30, 2017) (citing Jones Figs. 13-14). The Examiner also finds that Jones discloses one or more actions that execute when the triggering condition is satisfied. Final Act. 4 ( citing Jones ,r 91). Appellant contends the Examiner erred because the selection of a trigger condition in Jones "is utilized to determine if the request is to be activated." Appeal Br. 12 (citing Jones ,r 92). Appellant argues that "[u]sing a triggering condition to determine whether or not to execute a search query, as provided in Jones, does not teach or suggest a triggering condition used to evaluate filtered events that a search query produces when applied to events of a data store." Id.; see also Reply Br. 14 (Jones discloses "a trigger condition that is associated with running/executing a request, and not a trigger condition that is applied to filtered events produced by a search query"). Appellant further contends the graphical user interface actions in Jones "are not actions to be executed when the triggering condition is satisfied." Appeal Br. 15; see also Reply Br. 15. Appellant's arguments are unpersuasive because Jones discloses an example in which a user is provided the score in a basketball when "a 10 Appeal2018-004460 Application 14/448,081 previously provided score is not the same as a new or current score." Jones ,r 91. That is, Jones teaches evaluating filtered events that a search query produces by comparing a new or current score with a previously provided score. Thus, Jones teaches an action-providing the new or current score to the user-that executes when the triggering condition is satisfied-when the new or current score is different from the previously provided score. Appellant argues "[t]he 'action' discussed in [paragraph 91] of Jones is the execution of the search query itself once the triggering conditions have been met." Appeal Br. 16. Providing a score, however, is a separate action from obtaining a new or current score (i.e., executing a search query). Therefore, we agree with the Examiner that Jones discloses both: "the triggering condition comprising criteria to evaluate filtered events that the search query produces when applied to the events of the data store" and "the one or more actions that execute when the triggering condition is satisfied," as recited in claim 1. Accordingly, we sustain the Examiner's 35 U.S.C. Â§ 103 rejection of claim 1, and the Examiner's 35 U.S.C. Â§ 103 rejections of claims 3, 4, 6-8, 10-19, 22-25, and 31--42, which Appellant does not argue separately. Appeal Br. 12. 35 U.S.C. Â§ 103----CLAIMS 2, 5, 20, AND 21 In rejecting claim 2 as obvious, the Examiner finds that Jones- which allows a person to submit a request to the search engine-teaches or suggests receiving a user request to test an execution of the search query. Final Act. 8 (citing, e.g., Jones ,r 176). Appellant contends the Examiner erred because "there is no mention of a user request to test execution of a search query." Appeal Br. 19; see also Reply Br. 16. 11 Appeal2018-004460 Application 14/448,081 Appellant's argument is unpersuasive because the limitation of a received request being used "to test an execution of the search query" is merely an intended use of the received request. "An intended use or purpose usually will not limit the scope of the claim because such statements usually do no more than define a context in which the invention operates." Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). Although "[s]uch statements often ... appear in the claim's preamble," a statement of intended use or purpose can appear elsewhere in a claim. See In re Stencel, 828 F.2d 751, 754 (Fed. Cir. 1987). Here, a request submitted by a person for purposes of testing execution of the search query is indistinguishable from a request submitted by the person for some other purpose. Therefore, we agree with the Examiner that Jones teaches or suggests "receiving a user request to test an execution of the search query," as recited in claim 2. Accordingly we sustain the Examiner's 35 U.S.C. Â§ 103 rejection of claim 2, and claims 5, 20, and 21, which Appellant argues are patentable for similar reasons. See Appeal Br. 21-26. DECISION We affirm the Examiner's decision rejecting claims 1-8, 10-25, and 31--42. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 4I.50(f). AFFIRMED 12