INTEL CORPORATION

Patent Trials and Appeals Board

Nov 29, 2021

2020005571 (P.T.A.B. Nov. 29, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/779,240 09/22/2015 Feng CHEN P71631US 7990
75343 7590 11/29/2021
Hanley, Flight & Zimmerman, LLC (Intel)
150 S. Wacker Dr. Suite 2200
Chicago, IL 60606
EXAMINER
BEJCEK II, ROBERT H
ART UNIT PAPER NUMBER
2123
NOTIFICATION DATE DELIVERY MODE
11/29/2021 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):
docketing@hfzlaw.com
jflight@hfzlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FENG CHEN, YAN HAO, YI YANG, and XIAOMING CHEN
____________

Appeal 2020-005571
Application 14/779,240
Technology Center 2100
_______________

Before JASON V. MORGAN, JAMES B. ARPIN, and HUNG H. BUI,
Administrative Patent Judges.

BUI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 21–45, all of the pending claims. Appeal Br. 16–23
(Claims App.). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.1

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42.
According to Appellant, Intel Corporation is identified as the real party in
interest. Appeal Br. 2.
1 We refer to the Appellant’s Appeal Brief filed February 24, 2020 (“Appeal
Br.”); Reply Brief filed July 23, 2020 (“Reply Br.”); Examiner’s Answer
mailed May 29, 2020 (“Ans.”); Final Office Action mailed August 22, 2019
(“Final Act.”); and Specification filed September 22, 2015 (“Spec.”).
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STATEMENT OF THE CASE
Predictive analytics generally refers to techniques for extracting
information from data to build a model that can predict an outcome from a
given input. Spec. ¶ 1. Appellant’s claimed invention relates to
“[p]redictive analytics . . . provided as a service running on a computer
network” and, more specifically, “trusted predictive analytics middleware
166 . . . embodied in a trusted predictive analytics middleware computing
device 150 [shown in Figure 1]” that can be launched by “a user-level
application 118” at “user computing device 110” to instantiate “an
executable trusted predictive analytics service (e.g., “detector”) 194 that is
based on a model description.” Id. ¶¶ 14–15.
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Figure 1, depicting such predictive analytics middleware 166, is
reproduced below:

Figure 1 shows computing system 100 including (1) user computing
device 110 (e.g., mobile phone) provided with user-level application 118
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(e.g., camera application or photo uploading service) to enable a user to
access predictive analytics service; and (2) trusted predictive analytics
middleware computing device 150 provided with trusted predictive analytics
middleware 166 to provide a common trusted execution environment in
which the predictive analytics service (e.g., “detector”) 194 offerred at
predictive analytics provider computing device 180 can be executed. Spec.
¶¶ 14–15.
According to Appellant,
[t]he trusted predictive analytics middleware computing
device 150 and the predictive analytics provider computing
device 180 may each be embodied as any type of electronic
device for performing the functions described herein. For
example, the computing devices 150, 180 may be embodied as,
without limitation, a server computer, a workstation, a
distributed computing system, a multiprocessor system, a
consumer electronic device, a smart phone, a tablet computer, a
wearable computing device, a laptop computer, a notebook
computer, a mobile computing device, a cellular telephone, a
handset, a messaging device, a vehicle telematics device, and/or
any other computing device configured to perform the functions
described herein.
Spec. ¶ 26 (emphasis added).
Claims 21, 30, and 39 are independent. Representative claim 21 is
reproduced below with disputed limitations emphasized and bracketed
numerals added for clarity:
21. A user compute device to provide a trusted predictive analytics
service, the user compute device comprising:
a processor;
a memory coupled to the processor;
a trusted predictive analytics middleware subsystem to, in
response to a user-level application request including input
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data for a predictive analytics service received from an
application of the user compute device, in a trust execution
environment of the user compute device, cause the user
compute device to:
[1] determine a model description for a predictive analytics
model, the model description created with a predictive
analytics model description language and received from a
predictive analytics provider, wherein the predictive
analytics model description language is to describe a
plurality of different predictive analytics models using a
common language;
[2] compare data associated with the user-level application
request with data indicative of digital rights permissions
associated with the model description;
if, based on the comparison of the data associated with the
user-level application request with data indicative of
digital rights permissions associated with the model
description, the user-level application request is permitted,
then [3] instantiate an executable associated with the
model description, and
operate the executable associated with the model description
without providing the processor access to the executable
and without providing the input data to the predictive
analytics provider.
Appeal Br. 16 (Claims App.).
REJECTIONS AND REFERENCES
(1) Claims 39–45 are rejected under 35 U.S.C. § 101 because the
claimed invention is directed to a signal per se which is non-statutory subject
matter. Final Act. 2–3.
(2) Claims 21–24, 27–32, 35–41, and 43–45 are rejected under
35 U.S.C. § 103 as obvious over the combined teachings of Lin et al. (US
8,843,427 B1; issued Sept. 23, 2014; “Lin”) and Al-Jaroodi et al. “Security
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Middleware Approaches and Issues for Ubiquitous Applications,”
Computers and Mathematics with Applications 60, pp. 187–197 (2010); “Al-
Jaroodi”. Final Act. 3–8, 10–11.
(3) Claims 25, 26, 33, 34, and 42 are rejected under 35 U.S.C.
§ 103 as obvious over the combined teachings of Lin, Al-Jaroodi, and Thom
et al. (US 2013/0031374 A1; published Jan. 31, 2013). Final Act. 8–11.
ANALYSIS
§ 101 Rejection of Claims 39–45
Independent claim 39 recites “one or more non-transitory machine
readable storage media comprising a plurality of instructions stored thereon
that, in response to being executed, cause a user compute device to” perform
several functions.
The Examiner finds the term “non-transitory machine readable storage
media” recited in claims 39–45 can be broadly interpreted to cover both
“non-transitory media and transitory propagating signal per se” in light of
Appellants’ Specification because Appellant’s Specification describes “the
disclosed embodiments may . . . be implemented as instructions carried by or
stored on a transitory or non-transitory machine-readable (e.g., computer-
readable) storage medium” and, as such, is directed to cover non-statutory
subject matter under 35 U.S.C. § 101. Final Act. 2; Ans. 3–4 (citing Spec.
¶ 11).
Appellant argues the Board’s precedential decision in Ex parte
Mewherter, 107 USPQ2d 1857 (PTAB 2013) is not applicable because the
claims were amended to “include[] [only] non-transitory embodiment” and,
as a result, “cannot include any transitory embodiments such as signal per se
or a carrier wave.” Appeal Br. 6–8; Reply Br. 2.
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We agree with Appellant. In Mewherter, the Board held that the
broadest reasonable interpretation of a “computer readable storage medium”
encompasses both transitory and non-transitory embodiments. Mewherter,
107 USPQ2d at 1862. However, the Board also advised all applicants to
amend the claims to recite “non-transitory” in order to overcome the
presumption that the term “computer readable medium” encompasses
signals or carrier waves. Guidance on this point is provided in U.S. Patent &
Trademark Office, Subject Matter Eligibility of Computer Readable Media,
1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010).
In this case, Appellant already has amended claims 39–45 to recite
“non-transitory” and exclude “any transitory embodiments such as signal per
se or a carrier wave.” For this reason, we do not sustain the Examiner’s
§ 101 rejection.
Obviousness of Claims 21–24, 27–32, 35–41, and 43–45
based on Lin and Al-Jaroodi

In support of the obviousness rejection, the Examiner finds the
combination of Lin and Al-Jaroodi teaches or suggests all of the limitations
of Appellant’s claim 21 and, similarly, independent claims 30 and 39. Final
Act. 3–6, 10–11. In particular, the Examiner finds Lin teaches Appellant’s
claimed “user compute device” [i.e., client computing system 104a–c, shown
in Figure 1] recited in claim 21, equipped with “a processor” and “a memory
coupled to the processor” for “a predictive analytics service . . . in a trusted
execution environment” configured to perform all recited functions,
including: [1] “determine a model description for a predictive analytics
model,” [2] “compare data associated with the user-level application request
with data indicative of digital rights permissions associated with the model
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description;” and [3] instantiate an executable associated with the model
description.” Id. at 3–5 (citing Lin 2:55–56, 3:41–42, 4:42–46, 5:26–27,
5:30, 10:8, 17:38–42, 18:50–51, Fig. 1).
Lin teaches a “predictive analytics platform,” shown in Lin’s Figure 1,
including multiple client computing systems 104a–c that enable client(s) to
access and upload data to predictive modeling server system 109 provided
with server system front-end 110 and data center 112, via network 102 to
select which predictive model to use for training and generate predictive
outputs based on the trained predictive model. Lin 2:31–32, 3:63–66, 4:11–
45, 5:7–31.
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Lin’s Figure 1, depicting the predictive analytics platform, is
reproduced below:

Lin’s Figure 1 depicts a system 100 providing a predictive analytics
platform, including multiple client computing systems 104a–c that enable
client(s) to access and upload data to predictive modeling server system 109,
via network 102, and select which predictive model to use for training and
generate predictive outputs based on the trained predictive model. Lin 3:63–
66, 4:11–45. Predictive modeling server system 109, as shown in Lin’s
Figure 1, includes (1) front-end 110 to receive a request or input data from
client computing system 104a-104c subject to user authentication for access
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control, and (2) data center 112 to run software that uses training data to
estimate the effectiveness of multiple types of predictive models and select
predictive model to be used for data received from particular client
computing system 104a. Id. at 4:32–45.
Predictive modeling server system 209, as shown in Lin’s Figure 2,
includes predictive model selection module 210 to select which predictive
model to use from predictive model repository 215 and repository 216 for
training functions for various predictive models; model training module 212
to train the predictive model based on training data from client computing
system 104a-104c, via data queue 213 and training data repository 214. Lin
5:7–31.
Lin’s Figure 2 is reproduced below:

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Figure 2 depicts predictive modeling server system 209 including several
components, for example, (1) predictive model selection module 210 to
select which predictive model to use from predictive model repository 215
and repository 216 for training functions for various predictive models; and
(2) model training module 212 to train the predictive model based on
training data from client computing system 104a–c, via data queue 213 and
training data repository 214. Lin 5:7–31.
According to Lin, these components are “software modules, e.g.,
executable software programs.” Lin 17:38–40. Lin’s software modules are
commonly understood as “middleware” by those skilled in the art because
these software modules or applications reside on top of an operating
system (OS), as shown in Figure 7, to allow particular client computing
system 104a to train a particular predictive model. Id. at 17:38–40; see also
Al-Jaroodi § 1, p. 187.
Nevertheless, the Examiner acknowledges Lin does not expressly use
the term “middleware,” but relies upon Al-Jaroodi to teach “a trusted
predictive analytics middleware subsystem” with “digital rights
permissions” “operate the executable associated with the model description
without providing the processor access to the executable and without
providing the input data to the predictive analytics provider” in order to
support the conclusion of obviousness. Final Act. 5–6 (citing Al-Jaroodi
§§ 3, 4.9, p. 188–89).
Appellant presents two principal arguments against the Examiner’s
combination of Lin and Al-Jaroodi. First, Appellant contends “claim 21
requires that the trusted predictive analytics middleware subsystem . . . to
cause the user compute device to perform certain actions, such as
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‘determine,’ ‘compare,’ and ‘instantiate,’” but Lin does not teach “that a
user compute device is to perform the features in question,” “such as, for
example: (i) “determine a model description for a predictive analytics
model,” (ii) “compare data associated with the user-level application request
with data indicative of digital rights permissions,” and (iii) “instantiate an
executable associated with the model description.” Appeal Br. 8–11; Reply
Br. 2–4. According to Appellant, Lin’s predictive modeling server system
206, shown in Lin’s Figure 2, performs the recited functions, not the “client
computing system.” Appeal Br. 10–11.
Second, Appellant contends (1) there is a distinction between (i) Lin’s
predictive modeling server system 209, shown in Lin’s Figures 1 and 2, and
(ii) Appellant’s claimed “user compute device” and, as such, (2) “the
proposed combination [of Lin and Al-Jaroodi] would result in the server of
Lin with the middleware of Al-Jaroodi” because “there is no suggestion . . .
that the middleware of Al-Jaroodi would be incorporated into a user
compute device, as opposed to a server [of Lin].” Id. at 11–12.
Appellant’s contentions are not persuasive of Examiner error.
Instead, we find the Examiner’s findings and reasons, including the
Examiner’s response to Appellant’s contentions, are supported by a
preponderance of the evidence on this record. Ans. 9–16. Arguments not
made are forfeited. See 37 C.F.R. § 41.37(c)(1)(iv) (2019). As such, we
adopt the Examiner’s findings and reasons provided therein. Id. For
additional emphasis, we note that Appellant’s arguments are based on an
incorrect interpretation of the claim term “user compute device” and a
fundamental misreading of Lin.
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Claim terms, during examination, are given their broadest reasonable
interpretation consistent with the specification. In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable
interpretation, claim terms are given their ordinary and customary meaning,
as would be understood by one of ordinary skill in the art in the context of
the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257
(Fed. Cir. 2007).
Here, the term “user compute device” is not defined by Appellant’s
Specification and is not limited to user computing device 110, shown in
Appellant’s Figure 1, because such user computing device 110 is only
described by Appellant’s Specification as enabling a user to launch a trusted
predictive analytics middleware 166, via user-level application 118, in a
trusted execution environment in which the predictive analytics service 194
can be executed. Spec. ¶ 15. However, both the trusted predictive analytics
middleware 166 and the predictive analytics service 194 do not reside in the
user computing device 110. Instead, the trusted predictive analytics
middleware 166 resides in trusted predictive analytics middleware
computing device 150. Likewise, the predictive analytics service 194
resides in predictive analytics provider computing device 180. However,
both “computing devices 150, 180 may be embodied as, without limitation, a
server computer, a workstation, a distributed computing system, a
multiprocessor system, . . . and/or any other computing device configured to
perform the functions described [in Figure 1].” Id. ¶¶ 15–16, 26.
Based on Appellant’s own Specification and the “general knowledge”
of an ordinarily skilled artisan, we agree with the Examiner that Appellant’s
claimed “user compute device” can be broadly, but reasonably, interpreted
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to encompass any computing device including Lin’s “predictive modeling
server system” as long as Lin’s “predictive modeling server system” is able
to perform the functions recited in Appellant’s claim 21. Ans. 5–6 (citing
Spec. ¶ 17).
The test for obviousness is not whether the claimed invention is
expressly disclosed in the references, but whether the claimed subject matter
would have been obvious to those of ordinary skill in the art in light of the
combined teachings of those references. In re Keller, 642 F.2d 413, 425
(CCPA 1981). In an obviousness analysis, it is not necessary to find precise
disclosure directed to the specific subject matter claimed because inferences
and creative steps that a person of ordinary skill in the art would employ can
be taken into account. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). In this regard, “[a] person of ordinary skill is also a person of
ordinary creativity, not an automaton.” Id. at 421.
As the U.S. Supreme Court has stated, obviousness requires an
“expansive and flexible” approach that asks whether the claimed
improvement is more than a “predictable variation” of “prior art elements
according to their established functions.” Id. at 415, 417. Here, in contrast
to that approach, Appellant’s contentions rigidly focus on a narrow reading
of Lin, without considering an ordinarily skilled artisan’s “knowledge,
creativity, and common sense.” Randall Mfg. v. Rea, 733 F.3d 1355, 1362
(Fed. Cir. 2013). For example, Lin’s predictive modeling server system 109,
shown in Figure 1, is described as including two components:
(1) front-end 110 to receive a request or input data from a particular client
computing system 104a subject to user authentication for access control, and
(2) data center 112 to run software that uses training data to estimate the
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effectiveness of multiple types of predictive models and select predictive
model to be used for data received from the client computing system 104a.
Lin 4:32–45. A person skilled in the art would understand that (1) Lin’s
“front-end” 110 may perform as Appellant’s trusted predictive analytics
middleware computing device 150 and (2) Lin’s data center 112 may
perform as Appellant’s predictive analytics provider computing device 180,
shown in Figure 1. As such, an ordinarily skilled artisan would have
understood that Appellant’s claimed “user compute device” may be taught
by either Lin’s front-end 110 or Lin’s predictive modeling server system 109
including both front-end 110 and back-end data center 112.
In the reply, Appellant further argues that “Claim 21 requires that the
‘user compute device’ received the ‘model description’ ‘from a predictive
analytics provider’” and, as such, “the claim requires that the ‘user compute
device’—not the ‘predictive analytics provider’—is what performs certain
functions such as ‘determine,’ ‘compare,’ and ‘instantiate.” Reply Br. 3.
We do not agree for the following reasons.
First, we decline to consider this argument raised for the first time in
the Reply Brief. As the Examiner has not been provided a chance to
respond, and in the absence of a showing of good cause by Appellant, this
argument is deemed waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2011)
(second sentence); In re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir. 2000) (noting
that an argument not first raised in the brief to the Board is waived on
appeal); Ex parte Nakashima, 93 USPQ2d 1834, 1837 (BPAI 2010)
(informative) (explaining that arguments and evidence not timely presented
in the principal Brief, will not be considered when filed in a Reply Brief,
absent a showing of good cause explaining why the argument could not have
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been presented in the Principal Brief); Ex parte Borden, 93 USPQ2d 1473,
1477 ( BPAI 2010) (informative) (“[p]roperly interpreted, the Rules do not
require the Board to take up a belated argument that has not been addressed
by the Examiner, absent a showing of good cause.”).
Second, even if we were to consider this argument, we remain
unpersuaded because the “predictive analytics provider” could be broadly,
but reasonably, interpreted to encompass Lin’s predictive model provided by
Lin’s predictive evaluation engine 708, shown in Figure 7.
For these reasons, Appellant does not persuaded us of Examiner error.
Accordingly, we sustain the Examiner’s obviousness rejection of
Appellant’s claim 21 and, similarly, of independent claims 30 and 39, and
their respective dependent claims 22–24, 27–29, 31–32, 35–38, 40–41, and
43–45, which are not argued separately. For the same reasons, we also
sustain the Examiner’s obviousness rejection of claims 25, 26, 33, 34, and
42.
CONCLUSION
On this record, Appellant persuades us that the Examiner errs in
rejecting claims 39–45 under 35 U.S.C. § 101. However, Appellant does not
persuade us that the Examiner errs in rejecting: (1) claims 21–24, 27–32,
35–41, and 43–45 under 35 U.S.C. § 103 as obvious over the combined
teachings of Lin and Al-Jaroodi; and (2) claims 25, 26, 33, 34, and 42 under
35 U.S.C. § 103 as obvious over the combined teachings of Lin, Al-Jaroodi,
and Thom.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner’s decision is
affirmed. See 37 C.F.R. § 41.50(a)(1).
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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. §  Reference(s)/Basis Affirmed Reversed
39–45 101 Eligibility 39–45
21–24,
27–32,
35–41,
43–45
103 Lin, Al-Jaroodi 21–24, 27–
32, 35–41,
43–45

25, 26, 33,
34, 42
103 Lin, Al-Jaroodi,
Thom
25, 26, 33,
34, 42

Overall
Outcome
21–45
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