Fan ZhangDownload PDFPatent Trials and Appeals BoardSep 9, 201913077816 - (D) (P.T.A.B. Sep. 9, 2019) 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. 13/077,816 03/31/2011 Fan Zhang 16113-2550001 6209 26192 7590 09/09/2019 FISH & RICHARDSON P.C. PO BOX 1022 MINNEAPOLIS, MN 55440-1022 EXAMINER BEHNCKE, CHRISTINE M ART UNIT PAPER NUMBER 3624 NOTIFICATION DATE DELIVERY MODE 09/09/2019 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): PATDOCTC@fr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte FAN ZHANG ____________________ Appeal 2018-005164 Application 13/077,8161 Technology Center 3600 ____________________ Before JOSEPH L. DIXON, HUNG H. BUI, and JON M. JURGOVAN, Administrative Patent Judges. JURGOVAN, Administrative Patent Judge. DECISION ON APPEAL Appellant seeks review under 35 U.S.C. § 134(a) from a Final Rejection of claims 1–4, 9, 22, 24–27, and 32, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.2 1 Appellant identifies Google LLC, as the real party in interest. (App. Br. 1.) 2 Our Decision refers to the Specification (“Spec.”) filed March 31, 2011, the Final Office Action (“Final Act.”) mailed June 16, 2017, the Appeal Brief (“App. Br.”) filed November 1, 2017, the Examiner’s Answer (“Ans.”) mailed February 26, 2018, and the Reply Brief (“Reply Br.”) filed April 20, 2018. Appeal 2018-005164 Application 13/077,816 2 CLAIMED INVENTION The claims are directed to a method and system for “inline data validation” of “business data indicative of business performance measures” by comparing a first set of metrics (obtained from a first set of business data for a first time period) to a second set of metrics (obtained from a second set of business data for a second time period). (Spec. ¶ 2; Abstract.) “In response to determining that the second set of business data are valid, at least a portion of the first business set of business data is overwritten with the second set of business data,” however, “[i]n response to determining that the second set of business data are invalid, an indication that the second set of business data are invalid is provided.” (Abstract.) Claims 1, 22, and 24 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A computer implemented method for inline data validation, comprising: receiving, by a processor, first data collected over a first time period, wherein the first data is a first set of performance data; receiving, by a processor, second data collected over a second time period having an overlapping period that partially overlaps the first time period, wherein the second time period is different than the first time period and ends after the first time period, and wherein the second data is a second set of performance data; performing, during data collection, inline data validation of the second set of performance data based on metrics calculated using (i) less than all of the second data collected in the second time period, and (ii) less than all of the first data collected in the first time period, including: determining that a first metric value calculated using the first data collected during the overlapping period Appeal 2018-005164 Application 13/077,816 3 is the same as a second metric value calculated using the second data collected during the overlapping period; and validating the second set of performance data based on the determination that the first calculated metric value is the same as the second calculated metric value; and in response to validating the second set of performance data based on the determination that the first calculated metric value is the same as the second calculated metric value, storing the second data without dividing the second data including overwriting at least some of the first data collected during the overlapping period with the second data collected during the overlapping period and deleting the at least some of the first data. (App. Br. 9–14 (Claims App.).) REJECTION Claims 1–4, 9, 22, 24–27, and 323 stand rejected under 35 U.S.C. § 101 as directed to non-statutory subject matter. (Final Act. 3– 8.) ANALYSIS Patent eligibility is a question of law that is reviewable de novo. Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333 (Fed. Cir. 2012). Accordingly, we review the Examiner’s § 101 determinations concerning patent eligibility under this standard. 3 Claim 32 is rejected (see Advisory Action dated September 8, 2017) but is not listed in the Examiner’s Final Action under the § 101 rejection (see Final Act. 3). However, we find this oversight on the Examiner’s part is harmless error and interpret the rejection of dependent claim 32 to be rejected under § 101, because claim 32 includes the features of its base claim 24 (rejected under § 101) as well as features similar to claim 9 (rejected under § 101). Appeal 2018-005164 Application 13/077,816 4 Patentable subject matter is defined by 35 U.S.C. § 101, as follows: [w]hoever 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. In interpreting this statute, the Supreme Court emphasizes that patent protection should not preempt “the basic tools of scientific and technological work.” Gottschalk v. Benson, 409 U.S. 63, 67 (1972) (“Benson”); Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012) (“Mayo”); Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014) (“Alice”). The rationale is that patents directed to basic building blocks of technology would not “promote the [p]rogress of [s]cience” under the U.S. Constitution, Article I, Section 8, Clause 8, but instead would impede it. Accordingly, laws of nature, natural phenomena, and abstract ideas, are not patent-eligible subject matter. Thales Visionix Inc. v. U.S., 850 F.3d 1343, 1346 (Fed. Cir. 2017) (citing Alice, 134 S.Ct. 2347, 2354 (2014)). The Supreme Court set forth a two-part test for subject matter eligibility in Alice (573 U.S. at 217–19). The first step is to determine whether the claim is directed to a patent-ineligible concept. Id. (citing Mayo, 566 U.S. at 76–77). If so, then the eligibility analysis proceeds to the second step of the Alice/Mayo test in which we “examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” Alice, 573 U.S. at 221 (quoting Mayo, 566 U.S. at 72, 79). There is no need to proceed to the second step, however, if the first step of the Alice/Mayo Appeal 2018-005164 Application 13/077,816 5 test yields a determination that the claim is directed to patent eligible subject matter. The Patent Office has recently revised its guidance for how to apply the Alice/Mayo test in the 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50–57 (January 7, 2019) (“the Revised Guidance”). Under the Revised Guidance, we first look to whether the claim recites: (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, mental processes, or certain methods of organizing human activity such as a fundamental economic practice or managing personal behavior or relationships or interactions between people); and (2) additional elements that integrate the judicial exception into a practical application (see Manual of Patent Examining Procedure (“MPEP”) § 2106.05(a)–(c), (e)– (h)). 84 Fed. Reg. at 51–52, 55. A claim that integrates a judicial exception into a practical application applies, relies on, or uses the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception. 84 Fed. Reg. at 54. When the judicial exception is so integrated, then the claim is not directed to a judicial exception and is patent-eligible under § 101. 84 Fed. Reg. at 54. Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then evaluate whether the claim provides an inventive concept. 84 Fed. Reg. at 56; Alice, 573 U.S. at 217–19, 221. Appeal 2018-005164 Application 13/077,816 6 Alice/Mayo—Step 1 (Abstract Idea) Step 2A–Prongs 1 and 2 identified in the Revised Guidance Step 2A—Prong 1 (Does the Claim Recite a Judicial Exception?) Turning to the first step of the Alice inquiry (Step 2A, Prong 1 of the Revised Guidance), the Examiner finds independent claim 1 (and similarly, claims 22 and 24) “is directed to the abstract idea of performing inline data validation during data collection . . . which is comparing new and stored information and using rules to identify options” and “collecting information, analyzing it and displaying certain results of the collection and analysis.” (Final Act. 4, 6.) The Examiner finds claim 1 recites abstract concepts similar to concepts identified as abstract by the courts in Electric Power Group, CyberSource, and Digitech. (Final Act. 4, 6 (citing Electric Power Grp., LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016); CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366 (Fed. Cir. 2011); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014)).) The Examiner then determines the claim elements, when analyzed individually and as an ordered combination, do not amount to significantly more than the abstract idea. (Final Act. 5–6; Ans. 4.) Appellant argues independent claims 1, 22, and 24 together, presenting arguments directed to independent claim 1, and Appellant does not set forth separate arguments for patentability of independent claims 22 and 24. (App. Br. 3, 6; Reply Br. 1, 11.) As a result, we select independent claim 1 as the representative claim for the group and address Appellant’s arguments thereto. See 37 C.F.R. § 41.37(c)(1)(iv) (2017). Claims 22 and 24 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2017). Appeal 2018-005164 Application 13/077,816 7 Appellant contends the Examiner erred in rejecting the claims under 35 U.S.C. § 101 as directed to non-statutory subject matter because the claims are not directed to an abstract idea. (App. Br. 4, 7; Reply Br. 3, 8.) Appellant’s arguments are not persuasive. Here, representative claim 1 recites a method that results in validating and storing collected business data. More specifically, representative claim 1 recites the following limitations: (1) “receiving . . . first data collected over a first time period, wherein the first data is a first set of performance data” and “receiving, . . . second data [(a second set of performance data)] collected over a second time period having an overlapping period”; (2) “performing, during data collection, inline data validation of the second set of performance data based on metrics calculated using (i) less than all of the second data” and “less than all of the first data” to validate the second data “based on the determination that the first calculated metric value [(calculated using the first data collected during the overlapping period)] is the same as the second calculated metric value ([calculated using the second data collected during the overlapping period])”; and (3) in response to validating the second data, “storing the second data without dividing the second data including overwriting at least some of the first data collected during the overlapping period with the second data collected during the overlapping period and deleting the at least some of the first data.” (App. Br. 9 (Claims App.).) These limitations, under their broadest reasonable interpretation, recite analyzing business data for commercial purposes (such as performance reporting and business decision making) because the limitations all recite collecting, examining, and storing business data, thereby describing operations that would ordinarily take place when a business entity analyzes its (or its competitors’) Appeal 2018-005164 Application 13/077,816 8 business data. For example, limitation (1) in claim 1 describes data collection activities for gathering business data over multiple time periods, which are activities ordinarily performed by a company’s business analysts. (See Spec. ¶ 1 (“data mining, business performance reporting, and decision making can require data to be periodically received” and analyzed). Limitation (2) in claim 1 describes processing the collected business data to determine whether the data is valid or erroneous—an activity ordinarily performed by companies while making commercial decisions and performance analyses based on available data. (See Spec. ¶¶ 1, 45–47.) Further, limitation (3) in claim 1 describes storing newer business data (determined to be valid) over older stored business data, which is, again, an activity ordinarily performed by a company’s business analysts that collect, analyze, and store the analyzed business data. Thus, Appellant’s method of collecting and analyzing business data for commercial purposes (such as performance analysis and decision making) is a known business activity and a fundamental economic practice in our system of commerce, similar to concepts identified by the courts as abstract ideas. That is, like the risk hedging in Bilski and the intermediated settlement in Alice, the concept of analyzing business data to determine if the data is not erroneous and is usable in business analytics and planning is a known business activity and a fundamental business practice long prevalent in our system of commerce. See Bilski v. Kappos, 561 U.S. 593, 612 (2010) (risk hedging); Alice, 573 U.S. at 218–20 (intermediated settlement of traded or exchanged financial obligations to mitigate the risk that one party will not perform); Two-Way Media, Ltd. v. Comcast Cable Communications, LLC, Appeal 2018-005164 Application 13/077,816 9 874 F.3d 1329, 1340 (Fed Cir. 2017) (measuring delivery of real-time information for commercial purposes is an abstract idea); SAP America, Inc. v. InvestPic, LLC, 890 F.3d 1016, 1021–23 (Fed Cir. 2018) (method for display, dissemination, and analysis of financial information using resampled statistical methods is an abstract idea). Thus, similar to the concept of intermediated settlement in Alice and the concept of hedging in Bilski, the concept of analyzing business data to determine if the data is valid and usable for business analytics and planning (as in Appellant’s claim 1) “[is] a fundamental economic practice long prevalent in our system of commerce.” See Alice, 573 U.S. at 216–18; Bilski, 561 U.S. at 611–12 (“Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk.”). We therefore conclude limitations (1)–(3) in representative claim 1, and similar limitations in grouped claims 22 and 24, recite analyzing business data to determine if the data is valid and usable for business analytics, which is a fundamental economic practice and one of the certain methods of organizing human activity identified in the Revised Guidance, and therefore an abstract idea. See Revised Guidance (Revised Step 2A, Prong One), 84 Fed. Reg. at 52, 54. We further note limitations (1)–(3) in claim 1 recite steps readily performable by a human being (e.g., by a business analyst analyzing incoming business data). Particularly, claim 1 recites a set of calculations that can be performed manually, by a person using a pen and paper to validate “second data” (which could be as small as two data points, as discussed supra) based on a comparison with “first data” (which, again, could be a small data set) at an overlapping time collection point. Thus, we Appeal 2018-005164 Application 13/077,816 10 conclude limitations (1)–(3) in claim 1 recite concepts that can be performed mentally and manually, which is another abstract idea identified in the Revised Guidance. See Revised Guidance, 84 Fed. Reg. at 52, 54; CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d at 1372–73 (“[A] method that can be performed by human thought alone is merely an abstract idea and is not patent-eligible under § 101.”). Claim 1’s “processor” automates such actions manually performable with pen and paper, however, mental processes remain unpatentable even when automated to reduce the burden on the user of what once could have been done with pen and paper. See CyberSource, 654 F.3d at 1375 (“That purely mental processes can be unpatentable, even when performed by a computer, was precisely the holding of the Supreme Court in Gottschalk v. Benson.”). In conclusion, representative claim 1, and grouped independent claims 22 and 24, recite abstract ideas comprising mental processes and a certain method of organizing human activities in the form of a fundamental economic practice. Step 2A—Prong 2 (Integration into Practical Application) Under Step 2A, Prong 2 of the Revised Guidance, we discern no additional element (or combination of elements) recited in Appellant’s representative claim 1 that integrates the judicial exception into a practical application. See Revised Guidance, 84 Fed. Reg. at 54–55 (“Prong Two”). For example, Appellant’s claimed additional elements (e.g., “processor,” “computer storage medium,” and “data store”) do not: (1) improve the functioning of a computer or other technology; (2) are not applied with any particular machine (except for a generic computer); (3) do not effect a transformation of a particular article to a different state; and (4) are not Appeal 2018-005164 Application 13/077,816 11 applied in any meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. See MPEP §§ 2106.05(a)–(c), (e)–(h). Rather, Appellant’s claimed hardware components are configured to perform numerous real- world functions and operations that automate the processing of business data, adding nothing of substance to the underlying abstract idea. (Ans. 5– 6.) It is clear from the claims and the Specification (discussing the use of “all kinds of apparatus, devices, and machines for processing data, including by way of example a programmable processor, a computer, a system on a chip, or multiple ones, or combinations, of the foregoing,” “an FPGA (field programmable gate array) or an ASIC (application specific integrated circuit),” “general and special purpose microprocessors,” and “mass storage devices for storing data, e.g., magnetic, magneto optical disks, or optical disks”), the claimed hardware components require no improved computing elements that Appellant claims to have invented. (See Spec. ¶¶ 103, 106; Ans. 6.) Thus, the claims’ limitations are not indicative of “integration into a practical application.” See Revised Guidance, 84 Fed. Reg. at 54–55. Rather, the processors and other claimed hardware components are readily available computing elements using their already available basic functions as tools in executing the claimed validation of business data. See SAP Am., Inc. v. InvestPic LLC, 898 F. 3d 1161 (Fed. Cir. 2018). Appellant contends the claims are not directed to an abstract idea, rather, they are “directed to ‘an improvement in computer-related technology’” and “directed at improving computer validation of datasets in a way that makes the computer implemented validation process more efficient, Appeal 2018-005164 Application 13/077,816 12 thereby improving the functioning of the computer.” (App. Br. 3, 6–7.) Appellant asserts the claimed invention provides various improvements that (i) “enable[] the computer system to ‘validat[e] data inline . . . by using [a] small amount of metrics collected,’ which ‘can greatly improve the efficiency of the data processing as well as the usage of computing resources,’” (ii) enable data validation to be “performed during data collection, such that a separate (e.g., parallel) validation process is not required,” (iii) enable “validat[ion of] a set of data without requiring the entire set of data be compared to a reference set of data” by “validat[ing] a set of data based on . . . metrics that are obtained using a proper subset of the set of data,” and (iv) “enabl[e] the system to more efficiently and quickly validate a large set of data that would otherwise take more time and computing resources and/or require a separate offline validation process.” (App. Br. 4–6 (citing Spec. ¶¶ 20, 28, 49, 52–53, 70).) Appellant also argues the claims are non-abstract because: (v) “like McRO, . . . the claimed solution (i.e., rules) that improves over conventional processes” enable the computer to “validate data more efficiently, thereby improving the capabilities of the computer,” and (vi) similar to Enfish, the claims are directed to an improvement in computer related technology, particularly in light of Appellant’s Specification that “provides abundant discussion as to how the claimed systems and methods improve computer-related technology.” (Reply Br. 7–9 (citing McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016)); App. Br. 7.) Appellant’s arguments are not persuasive. Although the Specification mentions “improv[ing] the efficiency of data processing as well as the usage Appeal 2018-005164 Application 13/077,816 13 of computation resources” by validating large amounts of data inline, claim 1 is not directed to such an improved validation method or to improved computer functionality for processing data. (See Spec. ¶¶ 1, 20, 48–49.) Claim 1 only recites validating “second data collected over a second time period” by reference to “first data collected in the first time period,” and does not recite or require “validat[ing] a large set of data” as Appellant asserts. (See App. Br. 6; Reply Br. 1, 9.) That is, broadly claimed “first data” and “second data” in claim 1 could each be as small as two data points, and the broadly claimed “first time period” and “second time period” could be time periods for collection of just four data points. Further, the claimed comparison of a “first metric value” and a “second metric value” includes “a comparison that determines whether there is a match between two sets of data, which can be an exact match” determined by “a strict comparison” of data points or of numbers of data points. (See Spec. ¶¶ 53, 73; see also Spec. ¶ 29 (“the metrics can be a number of accounts”).) The broadly worded “validation” in claim 1 thus includes a determination that sets of two data points include one overlapping data point at one overlapping time point. However, claim 1 does not recite or require “efficiently and quickly validat[ing] a large set of data that would otherwise take more time and computing resources,” and does not preclude “a separate offline validation process,” as Appellant asserts. (See App. Br. 6; Reply Br. 9.) Although claims are interpreted in light of the Specification, limitations from the Specification are not read into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Appellant also asserts the claimed invention advantageously “validate[s] a set of data based on . . . metrics that are obtained using a proper subset of the set of data,” but claim 1 does not Appeal 2018-005164 Application 13/077,816 14 specify how the “metrics” are obtained or selected, and the Specification broadly provides the “metrics” can be “metrics indicative of business performance measures” or “a number of accounts . . . or other customizable metrics of business data.” (See Reply Br. 3; App. Br. 4; see Spec. ¶¶ 29, 65, 73.) We also note Appellant’s reliance on McRO and Enfish is misplaced. For example, McRO’s ’576 patent (U.S. Patent No. 6,307,576) describes computer software for matching audio to a 3D animated mouth movement to provide lip-synched animation. McRO’s claims contain (i) specific limitations regarding a set of rules that “define[] a morph weight set stream as a function of phoneme sequence and times associated with said phoneme sequence” to enable computers to produce “accurate and realistic lip synchronization and facial expressions in animated characters” (McRO, 837 F.3d at 1313) and, when viewed as a whole, are directed to (ii) a “technological improvement over the existing, manual 3–D animation techniques” that uses “limited rules in a process specifically designed to achieve an improved technological result in conventional industry practice.” Id. at 1316. Enfish’s data storage and retrieval method and system recites a “self-referential table . . . [for a computer database] [which] is a specific type of data structure designed to improve the way a computer stores and retrieves data in memory.” Enfish, 822 F.3d at 1336, 1339. In contrast to Enfish and McRO, Appellant’s Specification and claims do not describe technological improvements or a specific improvement to the way computers operate or to the way computers store and retrieve data in memory. See Enfish, 822 F.3d at 1336, 1339. Rather, Appellant’s Specification and claims describe techniques for validating “business data Appeal 2018-005164 Application 13/077,816 15 being collected associated with a particular business entity” by determining data differences (e.g., data of a same time period not matching) or unusual data fluctuations, the “business data” being “data indicative of business performance.” (See Spec. ¶¶ 28, 47–48 (describing “business data” including “performance measures for advertisements”), 53–56, 64 (describing “business data indicative of business performance measures, such as advertisement presentations, advertisement clicks, sales, etc.”)) Appellant argues “like McRO, . . . the claimed solution (i.e., rules) that improves over conventional processes” enables the computer to “validate data more efficiently, thereby improving the capabilities of the computer” and “improv[ing] computer-related technology” similar to Enfish; however, Appellant does not explain why the broad specification of the claimed “validating” (which may determine if just one data point collected at one time is not erroneous) would improve a computer’s capabilities or a computer-related technology. (Ans. 4–5; see Reply Br. 7, 9; Spec. ¶¶ 53, 73.) Appellant also asserts the claims are not directed to an abstract idea because they address “a problem that arises in the context of the computer technology” and are “directed to a specific implementation of a solution to a problem in the software arts,” similar to the claims in Enfish. (App. Br. 4, 7; Reply Br. 10.) We are not persuaded by Appellant’s arguments because Appellant’s claim 1 addresses a business problem of identifying invalid or erroneous business data to avoid using that data in business analytics and decision-making. (See Spec. ¶¶ 1, 47.) Appellant also does not explain why comparing two data sets and storing newer data over older data would address “a problem in the software arts.” (See App. Br. 7.) Furthermore, Appeal 2018-005164 Application 13/077,816 16 Appellant’s recited abstract idea is not rooted in computer technology, as the claims in DDR. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014). Nor does it provide any technical solution to a technical problem as required by DDR. Appellant also has not demonstrated their claimed generic processor is able to perform functions that are not merely generic, as the claims in DDR. See DDR Holdings, 773 F.3d at 1258. Appellant also argues claim 1 “recites an unconventional combination of features” similar to the claims in Bascom. (Reply Br. 2 (citing Bascom Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016)).) We remain unpersuaded because Appellant’s claim 1 merely recites data comparison and storage steps performable by a conventional processor, or performable manually by a business analyst. (Final Act. 4, 6.) In contrast, Bascom’s patent-eligible ordered combination of claim limitations contains an “inventive concept [that] harnesses [a] . . . technical feature of network technology in a filtering system by associating individual accounts with their own filtering scheme and elements while locating the filtering system on an ISP [(Internet Service Provider)] server.” See Bascom, 827 F.3d at 1350. Bascom’s claimed ordered combination “improve[s] the performance of the computer system itself” with a “technology-based solution . . . to filter content on the Internet that overcomes existing problems with other Internet filtering systems.” See Bascom, 827 F.3d at 1351–52 (internal citation omitted). Appellant’s abstract idea of analyzing business data to determine if the data is valid and usable for business analytics does not provide any particular practical application as required by Bascom, or entail an unconventional technological solution to a technological problem as required by Amdocs. Instead, Appeal 2018-005164 Application 13/077,816 17 Appellant’s invention uses generically-claimed computing elements to perform the abstract idea. (Ans. 4–5.) As our reviewing court has observed, “after Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.” DDR Holdings, 773 F.3d at 1256 (citing Alice, 573 U.S. at 221–22). Appellant further argues the claims are “directed to a technological solution to a technological problem” as they “solve the problem of how to validate large sets of data that are collected and processed in distributed computing systems in an efficient manner.” (Reply Br. 1, 3.) We remain unpersuaded by Appellant’s non-commensurate arguments, as claim 1 does not recite or require processing data “collected and processed in distributed computing systems” or validating “large sets of data” as Appellant asserts. (Reply Br. 1.) Rather, claim 1 covers comparisons of minimal data sets and saving newer data over older data, as discussed supra. With respect to preemption, Appellant argues “the claims do not preempt all applications of the alleged abstract idea,” rather, they provide “a particular solution to a problem or a particular way to achieve a desired outcome.” (App. Br. 7; see also Reply Br. 10–11.) As noted by the Examiner, however, “mitigation of preemption concerns alone do not circumvent the prohibition against an abstract idea.” (Ans. 6–7.) We agree with the Examiner. As the McRO court explicitly recognized, “the absence of complete preemption does not demonstrate patent eligibility.” See McRO, 837 F.3d at 1315 (quoting Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)). Furthermore, “[w]here a patent’s claims are deemed only to disclose patent ineligible subject matter” under the Alice/Mayo framework, “preemption concerns are fully addressed and made Appeal 2018-005164 Application 13/077,816 18 moot.” Ariosa, 788 F.3d at 1379. We further note, while claims 1, 22, and 24 may not entirely preempt the abstract idea recited therein, these broad claims pose significant preemption concerns in the field of business analytics and data analysis, as the claims cover comparisons of minimal data sets and storage of newer data over older data. Although Appellant argues “the claimed subject matter improves data validation technology, as the increase in data collection at the time gave rise to a need to improve the validation technology such that data processing can keep up with the amount of data that is collected” (see Reply Br. 11), Appellant’s broadly worded claims 1, 22, and 24 do not require fast processing of large amounts of data. For these reasons, we determine claim 1, and grouped claims 22 and 24, are directed to a judicial exception, namely, analyzing business data to determine if the data is valid and usable for business analytics, which is a fundamental economic practice and one of the certain methods of organizing human activity identified as an abstract idea in the Revised Guidance. Alice/Mayo—Step 2 (Inventive Concept) Step 2B identified in the Revised Guidance In the second step of the Alice inquiry, Appellant argues claim 1 recites significantly more than a judicial exception because the claim focuses on “an improvement in computer related technology because it is enabling the system to more efficiently and quickly validate a large set of data that would otherwise take more time and computing resources and/or require a separate offline validation process” and “there has been no showing that it was conventional at the time of filing to validate data in an inline manner (i.e., while the data is being collected) using metrics calculated using less than all of the data.” (Reply Br. 2, 4, 6, 8.) Appeal 2018-005164 Application 13/077,816 19 Appellant’s arguments are not persuasive. At the outset, we note Appellant’s arguments are again not commensurate with the language of claims 1, 22, and 24, which do not require validating “a large set of data,” and do not preclude “a separate offline validation process” as Appellant asserts. (See Reply Br. 8.) As recognized by the Revised Guidance, an “inventive concept” under Alice step 2 can be evaluated based on whether an additional element or combination of elements: (1) “[a]dds a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field, which is indicative that an inventive concept may be present;” or (2) “simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, which is indicative that an inventive concept may not be present.” See Revised Guidance, 84 Fed. Reg. at 56. In this case, however, we find no element or combination of elements recited in Appellant’s claim 1 that contains any “inventive concept” or adds anything “significantly more” to transform the abstract concept into a patent- eligible application. Alice, 573 U.S. at 221. We are not persuaded by Appellant’s argument that the “claims recite an ordered combination of features beyond that which was ‘well-understood, routine, [or] conventional’ at the time of filing.” (Reply Br. 4.) Appellant has not provided evidence that manually performable steps of comparing small data sets (as encompassed by claim 1) and saving newer data points over older data points are unconventional steps. Appellant also argues “there has been no showing that it was conventional at the time of filing to validate data in an Appeal 2018-005164 Application 13/077,816 20 inline manner (i.e., while the data is being collected) using metrics calculated using less than all of the data.” (Reply Br. 8.) We remain unpersuaded because checking the data as the data is being collected can also be manually performed, e.g., by a business analyst analyzing incoming business data, and Appellant has not explained why such manually performable techniques are unconventional. Additionally, Appellant’s Specification describes generic processors and data storage performing generic data processing and storage functions. (See Spec. ¶¶ 103, 106; Ans. 4; Final Act. 4.) “[T]he use of generic computer elements like a microprocessor or user interface” to perform conventional computer functions “do not alone transform an otherwise abstract idea into patent- eligible subject matter.” FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1096 (Fed. Cir. 2016) (citing DDR Holdings, 773 F.3d at 1256); see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (“relying on a computer to perform routine tasks more quickly or more accurately is insufficient to render a claim patent eligible”); Bancorp Services, L.L.C. v. Sun Life Assurance Co. of Canada (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“the fact that the required calculations could be performed more efficiently via a computer does not materially alter the patent eligibility of the claimed subject matter.”). Because Appellant’s representative claim 1, and grouped claims 22 and 24 are directed to a patent-ineligible abstract concept and do not recite an “inventive concept” by providing a solution to a technical problem under the second step of the Alice analysis, we sustain the Examiner’s § 101 rejection of independent claims 1, 22, and 24. Appeal 2018-005164 Application 13/077,816 21 No separate arguments are presented for dependent claims 2–4, 9, 25– 27, and 32, which fall with independent claims 1, 22, and 24. 37 C.F.R. § 41.37(c)(1)(iv). We, therefore, sustain the rejection under 35 U.S.C. § 101 of claims 2–4, 9, 25–27, and 32. DECISION The Examiner’s rejection of claims 1–4, 9, 22, 24–27, and 32 under 35 U.S.C. § 101 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)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation