VARONIS SYSTEMS, INC.

Patent Trials and Appeals Board

Jun 2, 2020

2019001828 (P.T.A.B. Jun. 2, 2020)

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.
13/771,560 02/20/2013 Yakov FAITELSON CU-70332 BSE 2083
26530 7590 06/02/2020
LADAS & PARRY LLP
224 SOUTH MICHIGAN AVENUE
SUITE 1600
CHICAGO, IL 60604
EXAMINER
ALRIYASHI, ABDULKADER MOHAMED
ART UNIT PAPER NUMBER
2447
NOTIFICATION DATE DELIVERY MODE
06/02/2020 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):
ChicagoUSPTO@ladas.net
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte YAKOV FAITELSON
and
OHAD KORKUS
____________________

Appeal 2019-001828
Application 13/771,560
Technology Center 2400
____________________

Before JOSEPH L. DIXON, DAVID M. KOHUT, and
JON M. JURGOVAN, Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1–24. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The claims are directed to “systems and methodologies for monitoring
shared data elements in a network” by “automatically ascertaining the
presence of shared data elements stored on multiple storage resources in
[the] network” or “automatically ascertaining the presence of shared data

1 We use the word “Appellant” to refer to “applicant(s)” as defined in 37
C.F.R. § 1.42. The real party in interest is Varonis Systems, Inc. Appeal Br.
2.
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elements stored on multiple storage resources in [the] network,” and
“automatically ascertaining at least one property of at least one share
designator associated with each of the shared data elements.” (Spec. ¶¶ 7–8,
12.)
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for automatically ascertaining a presence of
shared data elements stored on multiple storage resources in a
network, the method comprising employing a computer server
connected to said network:
for automatically ascertaining a presence of said multiple
storage resources on said network by continuously monitoring
said network;
for each of said multiple storage resources ascertained to
be present in said network, for automatically ascertaining a
presence of shared data elements associated with stored data
elements stored on each of said multiple storage resources
ascertained to be present in said network; and
for each of said shared data elements ascertained to be
present on said multiple storage resources in said network, for
automatically ascertaining at least one property of at least one
share designator associated with each shared data element of
said shared data elements, said at least one share designator
being distinguished from said data element, said at least one
property of said at least one share designator being
distinguished from file level permissions of said data element
associated therewith and comprising a network location of a
person creating, removing or changing a share designator at the
time of creating, removing or modifying said share designator.
(Appeal Br. 18–25 (Claims Appendix).)

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Subramanya US 2011/0145216 A1 June 16, 2011
(“Subramanya”)

Labowicz et al. US 2012/0278471 A1 Nov. 1, 2012
(“Labowicz”)

Brien Posey, Step-By-Step: How to audit file and folder access to improve
Windows 2000 Pro security, TechRepublic, February 26, 2003,
http://www.techrepublic.com/article/step-by-step-how-to-audit-file-and-
folder-access-to-improve-windows-2000-pro-security/ (retrieved April 11,
2017) (“Posey”)

Wahlert et al. US 2006/0053147 A1 Mar. 9, 2006
(“Wahlert”)

Dye et al. US 2005/0114658 A1 May 26, 2005
(“Dye”)

REJECTIONS
The Examiner made the following rejections:
Claims 1–24 stand rejected under 35 U.S.C. § 112(a) as failing to
comply with the written description requirement. (Final Act. 3.)
Claims 1–24 stand rejected under 35 U.S.C. § 112(b) as being
indefinite. (Final Act. 4.)
Claims 1–24 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to a judicial exception (i.e., a law of nature, a
natural phenomenon, or an abstract idea) without significantly more. (Final
Act. 4–7.)
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Claims 1–3, 5, 13–15, and 17 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Subramanya in view of Labowicz and Posey.
(Final Act. 7–15.)
Claims 6–8, 10, 12, 18–20, 22, and 24 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Wahlert in view of
Subramanya and Posey. (Final Act. 15–23.)
Claims 4 and 16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Subramanya in view of Labowicz and Posey, and further
in view of Dye. (Final Act. 23–24.)
Claims 9, 11, 21, and 23 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wahlert in view of Subramanya and Posey, and
further in view of Dye. (Final Act. 25–26.)

ANALYSIS
35 U.S.C. § 112(a) Rejection
To satisfy the written description requirement, the disclosure must
reasonably convey to skilled artisans that Appellant possessed the claimed
invention as of the filing date. Ariad Pharms., Inc. v. Eli Lilly & Co., 598
F.3d 1336, 1351 (Fed. Cir. 2010) (en banc).
The Examiner finds “claims [1, 6, 13 and 18] recite the limitation
‘said at least one property of said at least one share designator being
distinguished from file level permissions of said data element associated
therewith’” and “this limitation is not supported by the specification.” (Final
Act. 3.) Appellant contends the limitation “said at least one property of said
at least one share designator being distinguished from file level permissions
of said data element associated therewith” is “implicitly supported by the
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specification,” because “file-system access and network share access” are
distinct and it is “deemed to be common knowledge to those skilled in the
art that properties of share designators are distinguished from file level
permissions of data elements associated therewith.” (Appeal Br. 9–10.)
Appellant offers evidence in the form of arguments discussed at a February
27, 2018 Interview with the Examiner, when
Applicants presented to the Examiner, a Microsoft Windows
folder properties dialog box. As was clearly shown, the dialog
box includes a “Security” tab, in which file access is managed,
and a “Sharing” tab, in which network shares are managed.
Clearly, these two tabs serve to manage file access and network
sharing as two separate entities.

Id. at 9.
The Examiner responds that “appellant relied on the prior art alone for
support to the [disputed claim] limitation without pointing out to anywhere
in the originally filed disclosure for support” and, moreover, “[t]he original
disclosure is completely silent about file level permissions and whether the
file level permissions [are] distinguished from share designator or whether
there is an association between file level permission and data element.”
(Ans. 26.)
We agree with the Examiner. The Examiner reasonably questioned
the presence of descriptive support in the original disclosure for the claim
limitation “said at least one property of said at least one share designator
[associated with each shared data element] being distinguished from file
level permissions of said data element associated therewith.” Appellant has
not identified where in the Specification this “property of said at least one
share designator being distinguished from file level permissions of said data
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element” is described. We also agree with the Examiner the Specification
does not appear to set forth written-description support for a property of a
share designator being distinguished from file level permissions as claimed.
In addition, Appellant’s arguments (reproduced supra) refer to “network
shares,” which is not recited in claims 1, 6, 13, and 18. (See Appeal Br. 9–
10.)
We, therefore, sustain the Examiner’s § 112, written description
rejection of independent claims 1, 6, 13, and 18, and their dependent claims
2–5, 7–12, 14–17, and 19–24.

35 U.S.C. § 112(b) Rejection
The Examiner rejects independent claims 1, 6, 13, and 18 as being
indefinite because “the claims recite the limitation ‘said data element’, in the
last limitation” and “there is insufficient antecedent basis for the limitation
in the claim[s].” (Final Act. 4.)
Appellant acknowledges, “the limitation ‘said data element’ refers to
the ‘shared data element’ introduced earlier in each of the independent
claims,” and Appellant “request[s] that the claims be amended accordingly
prior to allowance, as by an Examiner’s amendment.” (Appeal Br. 10.)
Since such claim amendment (for resolving the insufficient antecedent basis)
has not yet been entered by the Examiner, we sustain the Examiner’s
§ 112(b) indefiniteness rejection of independent claims 1, 6, 13, and 18, and
their dependent claims 2–5, 7–12, 14–17, and 19–24.

35 U.S.C. § 101 Rejection
An invention is patent eligible if it claims a “new and useful process,
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machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[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) (brackets in original) (citing Diamond v. Diehr,
450 U.S. 175, 185 (1981)).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217–18
(2014) (citing Mayo, 566 U.S. at 75–77). In accordance with that
framework, we first determine what concept the claim is “directed to.” See
Alice, 573 U.S. at 218–19 (“On their face, the claims before us are drawn to
the concept of intermediated settlement, i.e., the use of a third party to
mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611
(2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept
of hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and, thus, patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diehr, 450 U.S. at 191); “tanning,
dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores”
(id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267–68 (1853)));
and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v.
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Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must 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 (internal citation
omitted). “A claim that recites an abstract idea must include ‘additional
features’ to ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The PTO recently published revised guidance on the application of
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§ 101. USPTO’s Memorandum, 2019 REVISED PATENT SUBJECT MATTER
ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (January 7, 2019) (“Revised
Guidance”). 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); 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) (9th ed., Rev. 08.2017, 2018)).

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 is not
“well-understood, routine, conventional” in the field (see MPEP
§ 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 Revised Guidance.
STEP 1 of the Revised Guidance
Independent claims 1 and 6, as “method” claims, recite one of the
enumerated categories of statutory subject matter in 35 U.S.C. § 101,
namely, a process. Independent claims 13 and 18, as “system” claims, recite
another of the enumerated categories of statutory subject matter in 35 U.S.C.
§ 101, namely, a machine.
The issue before us is whether claims 1, 6, 13, and 18 are directed to a
judicial exception without significantly more.

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STEP 2A, Prong 1 of the Revised Guidance
The first Prong of Step 2A under the Revised Guidance is to
determine whether a claim recites a judicial exception including (a)
mathematical concepts; (b) certain methods of organizing human activity;
and (c) mental processes. Revised Guidance, 84 Fed. Reg. at 51–52. Here,
the Examiner determines that “the claimed invention in this instant
application is substantially similar to FairWarning v. Iatric. . . . in which the
court found the claims are not patent eligible” as “directed to the concept of
collecting and analyzing information to detect misuse and notifying a user
when misuse is detected (data auditing in a computer environment). This
concept is similar to the features that are being claimed.” (Ans. 27 (citing
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089 (Fed. Cir. 2016));
see also Final Act. 5–6 (referring to information collection, comparing and
analyzing information, and displaying results of the collection and analysis)
(citing Electric Power Grp., LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir.
2016); Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057 (Fed.
Cir. 2011); PerkinElmer, Inc. v. Intema Ltd., 496 F. App’x. 65 (Fed. Cir.
2012)).) The Examiner further asserts the “[claimed] elements encompassed
in a computer server and in the feature of automatically performing the
[ascertaining] limitations . . . add insignificant extrasolution activity.” (Final
Act. 5–7.)
We are not persuaded by the Examiner’s findings, as we are unable to
agree that the Examiner has adequately found the concept of claim 1 to be
similar to other concepts (e.g., data collection and organization, mental
processes, mathematical concepts, or methods of organizing human activity)
found to be abstract ideas by our reviewing courts. Appellant’s claim 1 (and
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independent claims 6, 13, and 18 reciting similar limitations) recites a
method of monitoring a computer network, the storage resources on the
network, and the data elements and shared data elements stored on the
storage resources in the network, the monitoring performed by a computer
server interacting with the network to automatically ascertain the stored
shared data elements present on the network and their properties. Here, we
are unable to determine from the Examiner’s analysis whether such
technique for automatically monitoring storage resources, data elements, and
shared data elements stored on the storage resources in the network
describes subject matter that is a mathematical concept, a method of
organizing human activity, or a mental process (i.e., one of the three types of
abstract ideas identified by the Revised Guidance). Claim 1 does not recite
any of the methods of organizing human activity identified in the Revised
Guidance. For example, claim 1 does not recite fundamental economic
principles or practices, commercial or legal interactions, or managing
personal behavior or relationships or interactions between people. See
Revised Guidance, 84 Fed. Reg. at 51–52. Second, claim 1 does not recite a
mathematical concept, such as a specific mathematical algorithm or formula.
See Flook, 437 U.S. at 586; Diehr, 450 U.S. at 187.
Appellant’s method—of monitoring the status of storage resources
and data elements on a network as these resources and data elements may
change in real-time—is also not performable by a human being or by pen
and paper. Rather, Appellant’s method requires automatic monitoring
operations performed between a computer server, a network, and various
storage resources on the network—operations that cannot practicably be
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performed in the human mind or with pen and paper, and thus do not amount
to a mental process. (See Appeal Br. 14.)
We also note the Examiner’s analysis of claim 1 (and claims 6, 13,
and 18) as “directed to the concept of collecting and analyzing information,”
oversimplifies the claim and does not identify an abstract idea recited
therein. (See Ans. 27; see also Final Act. 5 (merely asserting that an
“abstract idea is encompassed in the [ascertaining] limitation(s)”).) Claim 1
does not merely recite collecting and organizing information, or data
manipulation in an abstract sense, as the Examiner asserts; rather, claim 1
relates to a method for automatically monitoring a network, storage
resources on the network, and data elements stored on the storage resources
in the network, which is not an abstract idea. (See Appeal Br. 18.)
Accordingly, in light of the Revised Guidance, we determine that
claim 1, and independent claims 6, 13, and 18 reciting similar limitations, do
not recite an abstract idea that would make them patent-ineligible under
35 U.S.C. § 101.
For these reasons, we do not sustain the Examiner’s rejection of
claims 1, 6, 13, and 18, and dependent claims 2–5, 7–12, 14–17, and 19–24,
as directed to patent-ineligible subject matter under 35 U.S.C. § 101.

35 U.S.C. § 103(a) Rejections
With respect to independent claims 1, 6, 13, and 18, Appellant argues
the claims together. (Appeal Br. 15–16.) Therefore, we select independent
claim 1 as the representative claim for the group and will address
Appellant’s arguments thereto. See 37 C.F.R. § 41.37(c)(1)(iv) (2017). We
do not consider arguments that Appellant could have made but chose not to
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make in the Brief so we deem any such arguments as waived. 37 C.F.R.
§ 41.37(c)(1)(iv).
With respect to representative independent claim 1, Appellant
contends claim 1 is not rendered obvious by the cited art because folders and
network shares are different, with “the prior art disclos[ing] monitoring
properties of folders” while “the claims of the present application recite
monitoring properties of network shares.” (Appeal Br. 15.) Appellant
further describes arguments discussed at the February 27, 2018 Interview
with the Examiner, when Applicant’s representative argued that “the
claimed ‘share designator’ is different than object (i.e. folder/files)
permissions as taught by windows audit” and “presented, to the Examiner, a
Microsoft Windows folder properties dialog box” to
clarify the aforementioned distinction between file-system
access and network share access. . . . the dialog box includes a
“Security” tab, in which file access is managed, and a “Sharing”
tab, in which network shares are managed. Clearly, these two
tabs serve to manage file access and network sharing as two
separate entities.

Id. at 16.
Appellant’s arguments are not persuasive. At the outset, we note
Appellant’s arguments are not commensurate in scope with the express
language of representative claim 1, which does not recite “network shares”
or “monitoring properties of network shares,” as Appellant argues. (See
Appeal Br. 15–16; see also Appeal Br. 18 (claim 1 reciting “share
designator”).) In addition, claim 1 does not preclude “monitoring properties
of folders,” monitoring “object (i.e. folder/files) permissions,” or auditing
“file-system access,” as Appellant contends. (Id.) Thus, Appellant’s
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arguments fail because the arguments are not commensurate with the scope
of claim 1. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982)
(“[A]ppellant’s arguments fail from the outset because . . . they are not based
on limitations appearing in the claims.”); see also In re Hiniker Co.,
150 F.3d 1362, 1369 (Fed. Cir. 1998) (“[The] proffered facts . . . are not
commensurate with the claim scope and are therefore unpersuasive.”).
From our review of the Examiner’s rejection, we find the Examiner
has found each of the elements of representative claim 1 and provided a line
of reasoning to modify those elements in the combination. For example, the
Examiner finds (i) Posey teaches “that ‘folders’ are shared, hence ‘shared
data element’, and the permissions associated with the folders teaches
‘associated share designator,’” and (ii) Subramanya’s “computer code, for
monitoring folders 34 and any corresponding changes in permissions
associated with the folders 34 as indicated in the accompanying ACL
[(Access Control List)] 36” teaches the claimed “automatically ascertaining
at least one property of at least one share designator associated with each
shared data element.” (Ans. 29 (citing Posey 2, 5; Subramanya ¶ 8);
Final Act. 8–10 (citing Posey 3; Subramanya ¶¶ 14, 42) (emphasis omitted).)
As the Examiner explains, “merely describing the claim limitation ‘data
element’ as ‘shared’ does not necessarily limit the limitation to sharing
folder between different users over a computer network. For example, a
local folder is shared by two users using the same computer, or shared by
processes/programs in the same computer.” (Ans. 29–30.)
As Appellant’s Brief has not shown error in the Examiner’s proffered
prima facie case of obviousness under § 103(a), we sustain the Examiner’s
decision in rejecting representative independent claim 1, grouped
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independent claims 6, 13, and 18, and dependent claims 2–5, 7–12, 14–17,
and 19–24 not separately argued, under 35 U.S.C. § 103(a). (Appeal Br.
16.)

CONCLUSIONS
The Examiner erred in rejecting claims 1–24 under 35 U.S.C. § 101.
The Examiner did not err in rejecting claims 1–24 under
35 U.S.C. § 112(a).
The Examiner did not err in rejecting claims 1–24 under
35 U.S.C. § 112(b).
The Examiner did not err in rejecting claims 1–24 based upon
obviousness under 35 U.S.C. § 103(a).

DECISION
For the above reasons, we REVERSE the Examiner’s patent eligibility
rejection of claims 1–24 under 35 U.S.C. § 101, and we AFFIRM (1) the
Examiner’s § 112(a) rejection of claims 1–24, as failing to comply with the
written description requirement, (2) the Examiner’s § 112(b) rejection of
claims 1–24, as being indefinite, and (3) the Examiner’s obviousness
rejections of claims 1–24 under 35 U.S.C. § 103(a).

In summary:
Claims
Rejected
35 U.S.C.§ Basis Affirmed Reversed
1–24 101 Eligibility 1–24
1–24 112(a) Written description 1–24
1–24 112(b) Indefiniteness 1–24
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Claims
Rejected
35 U.S.C.§ Basis Affirmed Reversed
1–3, 5, 13–15, 17 103(a) Subramanya,
Labowicz, Posey
1–3, 5, 13–
15, 17

6–8, 10, 12, 18–20,
22, 24
103(a) Wahlert,
Subramanya, Posey
6–8, 10, 12,
18–20, 22,
24

4, 16 103(a) Subramanya,
Labowicz, Posey,
Dye
4, 16
9, 11, 21, 23 103(a) Wahlert,
Subramanya,
Posey, Dye
9, 11, 21, 23
Overall Outcome 1–24

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).
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