Dino Dai Zovi

Patent Trials and Appeals Board

Dec 19, 2019

14542481 - (D) (P.T.A.B. Dec. 19, 2019)

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.
14/542,481 11/14/2014 Dino Dai Zovi SQR-10810;SQ-0311-US1 3033
129981 7590 12/19/2019
Mattingly & Malur, PC - Square
1800 Diagonal Road, Suite 210
Alexandria, VA 22314
EXAMINER
BEHESHTI SHIRAZI, SAYED ARESH
ART UNIT PAPER NUMBER
2435
NOTIFICATION DATE DELIVERY MODE
12/19/2019 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):
cbarnitz@mmiplaw.com
ptomail@mmiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DINO DAI ZOVI
____________________

Appeal 2018-000719
Application 14/542,481
Technology Center 2400
____________________

BEFORE JUSTIN BUSCH, JAMES W. DEJMEK, and
JOYCE CRAIG, Administrative Patent Judges.

DEJMEK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1–20. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b).
We reverse.

1 Throughout this Decision, we use the word “Appellant” to refer to
“applicant” as defined in 37 C.F.R. § 1.42 (2016). Appellant identifies
Square, Inc. as the real party in interest. Appeal Br. 3.
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STATEMENT OF THE CASE
Introduction
Appellant’s disclosed and claimed invention generally relates to
“protecting information displayed on an end user device against attempts to
capture such information.” Spec. ¶ 1. More specifically, Appellant
describes a scenario wherein a user’s computer may be compromised (i.e.,
by malware). Spec. ¶ 15. According to the Specification, such a
compromised computer may be vulnerable to the detection and capture of
sensitive user data. Spec. ¶¶ 13–15. “[E]ven with the images encrypted, the
images can still potentially be captured by malware after the images are
decrypted by the recipient’s computer if the recipient’s computer is
compromised.” Spec. ¶ 13. To mitigate the risk of a decrypted image being
intercepted by malware, Appellant describes loading a cryptographic shader
into a graphics processor unit (GPU) of the user’s computer to perform the
decryption of the image. Spec. ¶ 16. In a disclosed embodiment, the GPU is
separate from the computer’s central processing unit (CPU). See Spec. ¶ 31.
According to the Specification, “the likelihood of an unscrupulous party
being able to intercept the decrypted image with a malware that operates on
the [user’s computer] is decreased, because the decrypted image data is only
decrypted on the GPU and then rendered directly to the screen.” Spec. ¶ 59.
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below with the disputed limitations emphasized in italics:
1. A method in a mobile computing device for protecting
sensitive information that is to be displayed by the mobile
computing device, the method comprising:
loading a cryptographic shader into a graphics processor
unit (GPU) in the mobile computing device separate from a
central processing unit (CPU) in the mobile computing device,
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wherein the cryptographic shader includes shading instructions
that implement at least a portion of a white-box cryptographic
algorithm, wherein a cryptographic key is integrated within the
white-box cryptographic algorithm so that the cryptographic key
is protected from extraction, and wherein the white-box
cryptographic algorithm is configured to decrypt encrypted
images;
receiving, at the mobile computing device, the sensitive
information in the form of an encrypted image from a remote
server via a wireless communication network, wherein the
encrypted image has been encrypted by the remote server with
the cryptographic key;
transferring, by the CPU in the mobile computing device,
the encrypted image from a main memory in the mobile
computing device to the GPU;
generating, by the GPU, a decrypted image by decrypting
the encrypted image using the cryptographic shader loaded in
the GPU; and
loading the decrypted image directly from the GPU into a
frame buffer that is coupled to the GPU and associated with a
display device of the mobile computing device, for display by the
display device, without any portion of the decrypted image
passing through the CPU or the main memory.

The Examiner’s Rejections
1. Claims 1–20 stand rejected under 35 U.S.C. § 101 as being
directed to patent-ineligible subject matter. Final Act. 5–6.
2. Claims 1, 4, 6–8, 12, 14–16, and 20 stand rejected under
35 U.S.C. § 103 as being unpatentable over Goss (US 2005/0213766 A1;
Sept. 29, 2005); Nelson et al. (US 2011/0225406 A1; Sept. 15, 2011)
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(“Nelson”); and Mikhailov et al. (US 8,850,216 B1; Sept. 30, 2014)
(“Mikhailov”).2 Final Act. 7–15.
3. Claims 2, 3, 9, 10, 17, and 18 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Goss, Nelson, Mikhailov, and Watanabe
(US 2007/0154018 A1; July 5, 2007). Final Act. 15–20.
4. Claims 5 and 13 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Goss, Nelson, Mikhailov, and Yoon et al. (US
2015/0039883 A1; Feb. 5, 2015) (“Yoon”). Final Act. 20–21.
5. Claims 11 and 19 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Goss, Nelson, Mikhailov, Watanabe, and Yoon. Final
Act. 21–22.

ANALYSIS3
Rejection under 35 U.S.C. § 101
Appellant disputes the Examiner’s conclusion that the pending claims
are directed to patent-ineligible subject matter. Appeal Br. 8–35; Reply
Br. 2–11. In particular, Appellant argues that when properly considered as a
whole, the claims provide an improvement in the functioning of a computing

2 Although the statement of rejection only identifies claims 1, 4, 6–8, 12, and
14, we note that the body of the rejection further identifies claims 15, 16,
and 20. See Final Act. 13–15. Appellant does not argue prejudice as a result
of the incomplete statement of rejection. Accordingly, we treat the omission
of claims 15, 16, and 20 from the statement of rejection as a harmless,
typographical error.
3 Throughout this Decision, we have considered the Appeal Brief, filed
June 27, 2017 (“Appeal Br.”); the Reply Brief, filed October 26, 2017
(“Reply Br.”); the Examiner’s Answer, mailed August 29, 2017 (“Ans.”);
and the Final Office Action, mailed November 18, 2016 (“Final Act.”), from
which this Appeal is taken.
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device by preventing the unauthorized capture of decrypted images (i.e.,
improved security). Appeal Br. 11, 14–18 (citing Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327 (Fed. Cir. 2016)). Additionally, Appellant asserts the
claims recite more than the alleged abstract idea of encrypting/decrypting
sensitive data (see Final Act. 6) by providing for the non-conventional
arrangement of elements, such as a cryptographic shader loaded into a
graphics processor unit (GPU) separate from a central processing unit
(CPU). Appeal Br. 19–24 (citing BASCOM Global Internet Services, Inc. v.
AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016)).
The Supreme Court’s two-step framework guides our analysis of
patent eligibility under 35 U.S.C. § 101. Alice Corp. Pty. Ltd. v. CLS Bank
Int’l, 573 U.S. 208, 217 (2014). In addition, the Office published revised
guidance for evaluating subject matter eligibility under 35 U.S.C. § 101,
specifically with respect to applying the Alice framework. USPTO, 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Office Guidance”). If a claim falls within one of the statutory
categories of patent eligibility (i.e., a process, machine, manufacture, or
composition of matter) then the first inquiry is whether the claim is directed
to one of the judicially recognized exceptions (i.e., a law of nature, a natural
phenomenon, or an abstract idea). Alice, 573 U.S. at 217. As part of this
inquiry, we must “look at the ‘focus of the claimed advance over the prior
art’ to determine if the claim’s ‘character as a whole’ is directed to excluded
subject matter.” Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d
1253, 1257 (Fed. Cir. 2016). Per Office Guidance, this first inquiry has two
prongs of analysis (i) does the claim recite a judicial exception (e.g., an
abstract idea); and (ii) if so, is the judicial exception integrated into a
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practical application. 84 Fed. Reg. at 54. Under the Office Guidance, if the
judicial exception is integrated into a practical application, see infra, the
claim is patent eligible under § 101. 84 Fed. Reg. at 54–55. If the claims
are not directed to an abstract idea, the inquiry ends. See McRO, Inc. v.
Bandai Namco Games Am. Inc., 837 F.3d 1299, 1312 (Fed. Cir. 2016).
However, if the claim is directed to a judicial exception (i.e., recites a
judicial exception and does not integrate the exception into a practical
application), the next step is to determine whether any element, or
combination of elements, amounts to significantly more than the judicial
exception. See Alice, 573 U.S. at 217; see also 84 Fed. Reg. at 56.
The Examiner concludes the claims are directed to
“encrypting/decrypting sensitive data,” which the Examiner interprets as
merely “a mathematical procedure for converting one form of numerical
representation to another.” Final Act. 5–6 (citing Digitech Image Techs.,
LLC v. Elec. for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014)). Moreover,
the Examiner finds the claims do not recite significantly more than the
abstract idea, and that the claims merely recite generic functions that are
well-understood, routine, and conventional. Final Act. 6; Ans. 12–13.
Further, in response to Appellant’s assertions, the Examiner determines that
the encryption/decryption of data (which is the focus of the claims) does not
provide an improvement to the technology. Ans. 14.
Although we agree that the claims involve the encryption and
decryption of sensitive data, we are mindful that “an invention is not
rendered ineligible for patent simply because it involves an abstract
concept.” Alice, 573 U.S. at 271. As set forth in the claims, an encrypted
image is received by the computing device and is transferred from a main
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memory by the CPU to the GPU. See, e.g., claim 1. The GPU, using a
cryptographic shader, decrypts the image, and loads the decrypted image
directly into a frame buffer for display. See, e.g., claim 1.
Here, we conclude that the focus of the claims (i.e., the character of
the claims as whole) is more than merely the encryption and decryption of
sensitive data. Instead, we conclude the claims are directed to improving the
security of the computing device by decrypting an encrypted image within
the GPU. As provided in the Specification, by containing the decryption of
the image within the GPU, “the vulnerability to malware’s eavesdropping or
impersonation [is reduced] because the only place where the decrypted
image exists is on the GPU and not the application processor (i.e., the
CPU).” Spec. ¶ 59; see also Enfish, 822 F.3d at 1337 (explaining the
conclusion that the claims are directed to an improvement of an existing
technology is bolstered by the specification’s teachings).
As the court discussed in Enfish, claims that improve an existing
technology might not succumb to the abstract idea exception of patent
eligibility. Enfish, 822 F.3d at 1335. In Enfish, the court framed the first
step of the Alice inquiry as whether the focus of the claims is on a specific
asserted improvement in computer capabilities or, instead on an abstract idea
that merely uses a computer as a tool for carrying out the abstract idea.
Enfish, 822 F.3d at 1335–36. In addition, our reviewing court has also
recently concluded that claims directed to improving computer security
improve the functioning of the computer itself and are, therefore, patent
eligible. See SRI Int’l, Inc. v. Cisco Sys., Inc., 930 F.3d 1295, 1304 (Fed.
Cir. 2019); Ancora Tech., Inc. v. HTC Am., Inc., 908 F.3d 1343, 1344 (Fed.
Cir. 2018). As discussed above, we find that the instant claims are directed
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to improving the security of a computing device. Accordingly, we conclude
the claims are patent eligible under 35 U.S.C. § 101.
Moreover, analysis under the Office Guidance does not alter our
conclusion. The Examiner concludes the claims are directed to an abstract
idea. See Final Act. 5–6; Ans. 5–11. In particular, the Examiner concludes
the claims are directed to encrypting/decrypting sensitive data, which is a
mathematical concept (i.e., a mathematical procedure for converting one
form of numerical representation to another) and, therefore an abstract idea.
Ans. 5; see also 84 Fed. Reg. at 52; Digitech, 758 F.3d at 1351.4
Claim 1 is reproduced below and includes the following claim
limitation(s) that recite encrypting/decrypting sensitive data, emphasized in
italics:
1. A method in a mobile computing device for protecting
sensitive information that is to be displayed by the mobile
computing device, the method comprising:
loading a cryptographic shader into a graphics processor
unit (GPU) in the mobile computing device separate from a
central processing unit (CPU) in the mobile computing device,
wherein the cryptographic shader includes shading instructions
that implement at least a portion of a white-box cryptographic
algorithm, wherein a cryptographic key is integrated within the
white-box cryptographic algorithm so that the cryptographic key
is protected from extraction, and wherein the white-box
cryptographic algorithm is configured to decrypt encrypted
images;
receiving, at the mobile computing device, the sensitive
information in the form of an encrypted image from a remote
server via a wireless communication network, wherein the

4 In Digitech, the court circumscribed its conclusion that merely using
mathematical algorithms to manipulate existing information to generate new
information is not patent eligible “[w]ithout additional limitations.”
Digitech, 758 F.3d at 1351 (emphasis added).
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encrypted image has been encrypted by the remote server with
the cryptographic key;
transferring, by the CPU in the mobile computing device,
the encrypted image from a main memory in the mobile
computing device to the GPU;
generating, by the GPU, a decrypted image by decrypting
the encrypted image using the cryptographic shader loaded in
the GPU; and
loading the decrypted image directly from the GPU into a
frame buffer that is coupled to the GPU and associated with a
display device of the mobile computing device, for display by
the display device, without any portion of the decrypted image
passing through the CPU or the main memory.
Because the claim recites an abstract idea (i.e., generating a decrypted
image by decrypting the encrypted image using the cryptographic shader),
we next determine whether the claim integrates the abstract idea into a
practical application. 84 Fed. Reg. at 54. To determine whether the judicial
exception is integrated into a practical application, we identify whether there
are “any additional elements recited in the claim beyond the judicial
exception(s)” and evaluate those elements to determine whether they
integrate the judicial exception into a recognized practical application. 84
Fed. Reg. at 54–55 (emphasis added); see also Manual of Patent Examining
Procedure (“MPEP”) § 2106.05(a)–(c), (e)–(h) (9th ed., Rev. 08.2017,
Jan. 2018).
As discussed above, we find the additional limitations integrate the
abstract idea (as identified by the Examiner) into a practical application—
specifically improving the security (and functioning) of the computing
device. See MPEP § 2106.05(a). In particular, the additional limitations of
loading the cryptographic shader into the GPU, transferring the received
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encrypted image from a main memory to the GPU by the CPU, decrypting
the image within the GPU, and loading the decrypted image directly from
the GPU into a frame buffer for display improve the security and functioning
of the computing device by containing the decryption and decrypted image
within the GPU where it is less susceptible to unauthorized capture by
malware. See Spec. ¶ 59; see also MPEP § 2106.05(a).
Moreover, we find the court’s holding in BASCOM instructive. In
BASCOM, the court determined that although filtering Internet content is a
“longstanding, well-known method of organizing human behavior, similar to
concepts previously found to be abstract,” the inventors had recognized “a
filter implementation versatile enough that it could be adapted to many
different users’ preferences while also installed remotely in a single
location.” BASCOM, 827 F.3d at 1348–51. Thus, when considered as an
ordered combination, the court concluded the claims provided an inventive
concept “in the non-conventional and non-generic arrangement of known,
conventional pieces.” BASCOM, 827 F.3d at 1350.
The court’s reasoning in BASCOM is applicable here. Appellant
describes the “conventional notion of offloading cryptographic calculations
from a CPU to a GPU.” Spec. ¶ 15. However, Appellant further describes
that with the conventional approach, decrypted images may be subject to
capture by malware (e.g., by a malware program eavesdropping on
communications between the CPU and memories by). Spec. ¶ 15. By
loading a cryptographic shader in the GPU, according to Appellant, the
decrypted image is constrained to the GPU (where it is then buffered for
display) and is “effectively shielded from attempts to capture [the decrypted
image] by any malware residing on the recipient’s computer.” Spec. ¶ 18.
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On the record before us, the Examiner has not provided sufficient evidence
or technical reasoning that it was conventional to decrypt an encrypted
image using a cryptographic shader loaded into a GPU. See Berkheimer v.
HP, Inc., 881 F.3d 1360 (Fed. Cir. 2018). Accordingly, when considered as
an ordered combination, we conclude the pending claims provide an
inventive concept by the unconventional arrangement of generic components
to yield a technological improvement.
For the reasons discussed supra, we are persuaded of Examiner error.
Accordingly, we do not sustain the Examiner’s rejection of claims 1–20
under 35 U.S.C. § 101.

Rejections under 35 U.S.C. § 103
In rejecting independent claims 1, 6, and 14, the Examiner finds, inter
alia, Goss teaches a graphics processor unit (GPU) in the mobile computing
device separate from a central processing unit (CPU) in the mobile device.
Final Act. 7 (citing Goss, Fig. 1). Further, the Examiner finds Nelson
teaches loading a cryptographic shader into a GPU. Final Act. 9 (citing
Nelson ¶ 9). Additionally, the Examiner finds Mikhailov teaches a
cryptographic shader including shading instructions that implement at least a
portion of a white-box cryptographic algorithm. Final Act. 10–11 (citing
Mikhailov, col. 4, ll. 1–15). Thus, the Examiner finds the combined
teachings of Goss, Nelson, and Mikhailov teach loading a cryptographic
shader into a GPU (Nelson) wherein the GPU is separate from the CPU in a
mobile device (Goss) and the cryptographic shader implements a white-box
cryptographic algorithm (Mikhailov).
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Appellant asserts that none of the references (alone or in combination)
teach a graphics processor unit (GPU). Appeal Br. 39–45; Reply Br. 12–16.
As such, Appellant argues that none of the references (alone or in
combination) teach loading a cryptographic shader into a GPU. Appeal
Br. 39–45; Reply Br. 12–16. More specifically, Appellant argues that the
Examiner erred in equating the cryptographic accelerator described in Goss,
or the encryption accelerator and crypto processor described in Nelson, with
the claimed GPU capable of operating the claimed cryptographic shader.
Appeal Br. 39–45. Rather, Appellant asserts the accelerators of Goss and
Nelson are “not able to execute a shader including shading instructions.”
Appeal Br. 39–41; Reply Br. 12–13.
In response, the Examiner finds that a cryptographic accelerator (as
described in Goss and Nelson) performs the encryption/decryption of data
and, therefore, interprets the cryptographic accelerator as the claimed GPU.
Ans. 19. Further, the Examiner explains “the cryptographic accelerator is
dedicated to encrypting/decrypting data, wherein data may be [a] video file.
Examiner notes GPU is a processing unit that processes video, image, etc.
Therefore the cryptographic accelerator dedicated for encrypting/decrypting
video file[s] would be interpreted as [a] GPU.” Ans. 19–20 (emphasis
added).
To be sure, the cryptographic accelerators in Goss and Nelson are
separate from the CPU and decrypt encrypted data. See, e.g., Goss ¶ 22,
Abstract, Fig. 1; Nelson ¶ 9, Abstract, Figs. 1, 2. However, as Appellant
argues, neither Goss nor Nelson describes the cryptographic accelerator as
further comprising a shader program or capability, such that the decryption
and shading (as well as additional graphics processing) are performed within
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the GPU. See Appeal Br. 39–41. Rather than a GPU, separate from the
CPU, generating a decrypted image using a cryptographic shader and
loading the decrypted image to a frame buffer for display, as claimed, Goss
describes the cryptographic accelerator as a “hybrid cryptographic
accelerator” that straddles between a Secure Execution Environment (SEE)
and the rest of the System-on-a-Chip (SoC). Goss ¶ 18. Moreover, Goss
describes that “the CPU mediates movement of the input data and the output
data between the data and output registers and the external memory.” Goss
¶ 22. Additionally, Goss describes “the streaming decrypted output data are
provided to one or more insecure data output registers of the hybrid
cryptographic accelerator.” Goss ¶ 26. In addition, Nelson describes a
cryptoprocessor and a separate encryption accelerator, each
communicatively coupled to an I/O controller. Nelson ¶¶ 33, 36. Nelson
generally describes the cryptoprocessor as configured to generate and
maintain encryption keys and the encryption accelerator as being configured
to load encryption keys and “execute multiple cryptographic functions.”
Nelson ¶¶ 33, 36. In addition, Nelson describes that middleware may serve
as an interface between an application program and the cryptoprocessor,
allowing the application to interact with the cryptoprocessor, and a device
driver may serve as an interface between the application and the encryption
accelerator, allowing the application and middleware to interact with the
encryption accelerator. Nelson ¶ 39. Thus, we do not find Goss or Nelson
(alone or in combination) teaches the claimed GPU, separate from the CPU,
comprising a cryptographic shader that also directly loads the decrypted
image to a frame buffer for display.
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Because we find it dispositive that the Examiner has not shown by a
preponderance of evidence that the cited prior art teaches or reasonably
suggests the claimed GPU (i.e., comprising a cryptographic shader), we do
not address other issues raised by Appellant’s arguments related to these
claims. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir.
1984) (finding an administrative agency is at liberty to reach a decision
based on “a single dispositive issue”).
For the reasons discussed supra, we are persuaded of Examiner error.
Accordingly, we do not sustain the Examiner’s rejection of independent
claim 1. For similar reasons, we do not sustain the Examiner’s rejection of
independent claims 6 and 14, which recite commensurate limitations.
Additionally, we do not sustain the Examiner’s rejections of claims 2–5, 7–
13, and 15–20, which depend directly or indirectly therefrom.

CONCLUSION
We reverse the Examiner’s decision rejecting claims 1–20 under
35 U.S.C. § 101.
We reverse the Examiner’s decision rejecting claims 1–20 under
35 U.S.C. § 103.

DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20
1, 4, 6–8,
12, 14–16,
20
103 Goss, Nelson,
Mikhailov
1, 4, 6–8,
12, 14–
16, 20
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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
2, 3, 9, 10,
17, 18
103 Goss, Nelson,
Mikhailov,
Watanabe
2, 3, 9,
10, 17, 18
5, 13 103 Goss, Nelson,
Mikhailov, Yoon
5, 13
11, 19 103 Goss, Nelson,
Mikhailov,
Watanabe, Yoon
11, 19
Overall
Outcome
1–20

REVERSED