Ex Parte CARASSO et al

Patent Trial and Appeal Board

Jan 22, 2019

14611093 (P.T.A.B. Jan. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/611,093 01/30/2015 R. David CARASSO
128058 7590 01/24/2019
Shook, Hardy & Bacon L.L.P.
(Splunk Inc.)
2555 Grand Blvd.
Kansas City, MO 64108
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
SP0020.03US/272019 3704
EXAMINER
ELLIS, MATTHEW J
ART UNIT PAPER NUMBER
2165
NOTIFICATION DATE DELIVERY MODE
01/24/2019 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):
IPDOCKET@SHB.COM
IPRCDKT@SHB.COM
Patentofficecorrespondence@splunk.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte R. DAVID CARAS SO, MICAH JAMES DELFINO, and
JOHNVEY HWANG
Appeal 2018-005963 1
Application 14/611,093
Technology Center 2100
Before ST. JOHN COURTENAY III, JASON J. CHUNG, and
NORMAN H. BEAMER, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1, 3-5, 7, 9, 12-15, 17, 18, 20-24, 26, and29-52.
Claims 2, 6, 8, 10, 11, 16, 19, 25, 27, and 28 are cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify the real party in interest is Splunk Inc. App. Br. 3.
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Application 14/611,093
Invention
The claimed invention on appeal "relates generally to data
presentation management, and more particularly, but not exclusively, to
providing real time display of data field values based on manual editing of
extraction rules." Spec. ,r 2.
Representative Claim
1. A computer-implemented method, comprising:
accessing a set of events, each event associated with a timestamp
and including in textual form a portion of machine data that was
created to record activity that has previously occurred in an
information technology environment, the timestamp including
both a time and date;
causing display of at least a first event from the set of
events, the display including the portion of machine data
included in the first event;
receiving from a user a selection of a portion of text from
the portion of machine data included in the displayed first event;
automatically determining a text extraction rule that, when
applied to the portion of machine data included in the first event,
would extract the selection of the portion of text in the displayed
first event;
for a second event in the accessed set of events, causing
display of the second event and an indication of a value that
would be extracted by applying the text extraction rule to the
portion of machine data included in the second event;
and
based on user input indicating that development of a text
extraction rule is complete, storing the completed text extraction
rule in computer memory as a definition for a field that can be
referenced by a field name in search queries for processing
events in a field-searchable data store that acts as a persistent
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repository for the events, the events including portions of raw
machine data and corresponding timestamps.
(Emphasis added regarding the contested limitations).
Rejections
A. Claims 1, 3-5, 7, 9, 12-15, 17, 18, 20-24, 26, and 29-52 are rejected
under pre-AIA 35 U.S.C. § 112, first paragraph, as failing to comply
with the written description requirement. Final Act. 2.
B. Claim 1 is rejected on the ground of nonstatutory obviousness type
double patenting (OTDP) as being unpatentable over claim 31 of
copending Application No. 13/748,313, now US Patent 8,682,906,
issued March 25, 2014. Final Act. 5.
C. Claim 1 is rejected on the provisional ground of nonstatutory
obviousness type double patenting (OTDP) as being unpatentable over
claim 31 of co-pending Application No. 14/169,268. Final Act. 7.
D. Claims 1, 3-5, 7, 9, 13-15, 17, 18, 20, 22-24, 26, 29-31, 33-38,
40-45, and 47-52 are rejected under pre-AIA 35 U.S.C. § I03(a) as
being obvious over the combined teachings and suggestions of Ginter
et al. (US 2005/0015624 Al) (hereinafter "Ginter"), Inanov et al. (US
2007 /0198565 Al) (hereinafter "Inanov"), Subrahmanyam et al. (US
2011/0066585 Al) (hereinafter "Subrahmanyam"), and Kubaitis (US
2001/0032205 Al).
E. Claims 12 and 21 are rejected under pre-AIA 35 U.S.C. § I03(a) as
being obvious over the combined teachings and suggestions of Ginter,
Inanov, Subrahmanyam, Kubaitis, and Satish et al. (US 9,077,715 Bl)
(hereinafter "Satish").
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F. Claims 32, 39, and 46 are rejected under pre-AIA 35 U.S.C. § 103(a)
as being obvious over the combined teachings and suggestions of
Ginter, Inanov, Subrahmanyam, Kubaitis, and Madireddi et al. (US
2012/022 7 004 A 1) (hereinafter "Madireddi").
Grouping of Claims
Based on Appellants' arguments, we decide the appeal of all claims
rejected under § 103 rejection D on the basis of representative claim 1. See
37 C.F.R. § 4I.37(c)(l)(iv). We address rejections A---C, E, and F
separately, infra.
ANALYSIS
We have considered all of Appellants' arguments and any evidence
presented.
Rejection A under§ 112, first paragraph (written description)
In the Appeal Brief, Appellants advance no arguments regarding all
claims 1, 3-5, 7, 9, 12-15, 17, 18, 20-24, 26, and 29-52, as rejected by the
Examiner for failing to comply with the written description requirement.
Arguments not made are waived. See 37 C.F.R. § 4I.37(c)(l)(iv).
Appellants advance new arguments in the Reply Brief: "Appellant
does not concede the 112(a) rejection. Indeed, in the Appeal Brief,
Appellant cites to various paragraphs and figures for support for this aspect
of the claim." Reply Br. 2 ( emphasis omitted).
However, Appellants proffered support (Summary of Claimed Subject
Matter) is required in every Appeal Brief under 37 C.F.R. § 4I.37(c)(l)(iii).
See App. Br. 3---6. Appellants' new arguments in the Reply Brief are not in
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response to any shift in the Examiner's position in the Answer and are
therefore untimely. We note arguments raised in a Reply Brief that were not
raised in the Appeal Brief or are not responsive to arguments raised in the
Examiner's Answer will not be considered except for good cause. See 37
C.F.R. § 41.41(b)(2); compare App. Br.; Ans. with Reply Br.
In particular, Appellants have not shown good cause why we should
consider Appellants' untimely arguments in the Reply Brief (2--4) regarding
Rejection A of all claims on appeal. Accordingly, we sustain the
Examiner's Rejection A under 35 U.S.C. § 112, first paragraph of all claims
1, 3-5, 7, 9, 12-15, 17, 18, 20-24, 26, and 29-52.
Rejections Band C under Non-Statutory OTDP
Appellants advance no arguments regarding claim 1 as rejected by the
Examiner under Rejections Band C. Arguments not made are waived. See
37 C.F.R. § 4I.37(c)(l)(iv). Accordingly, we proforma sustain the
Examiner's Rejections Band C of claim 1 on the grounds of non-provisional
and provisional non-statutory OTDP, respectively.
Rejection D of Representative Claim 1 under§ 103(a)
Appellants contest the following conditional limitation of
representative independent claim 1:
based on user input indicating that development of a text
extraction rule is complete, storing the completed text extraction
rule in computer memory as a definition for a field that can be
referenced by a field name in search queries for processing
events in a field-searchable data store that acts as a persistent
repository for the events, the events including portions of raw
machine data and corresponding timestamps.
( emphasis added).
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Appellants focus on paragraphs 7, 11, 15, and 92 of Subrahmanyam,
and contend:
Initially, events in log data as used in Subrahmanyam are
not events, in a field-searchable data store, that can be processed
via a search query referencing a field name, as in independent
claim 1. In contrast, the log file described in Subrahmanyam is
not a field searchable data store. That is, the log file in
Subrahmanyam does not enable a search query referencing a
field name to be executed against the events in a field-searchable
data store via an extraction rule defining thefield. Instead, in
Subrahmanyam, the log data "events" are normalized into a
structured format so that they "can be effectively analyzed and
used for reporting, correlation, etc."
Subrahmanyam at ,r [0007].
As such, at best, the "events" in the log data of
Subrahmanyam are not field-searchable until they are
normalized into a structured format. Accordingly,
Subrahmanyam cannot teach or suggest storing the completed
text extraction rule in computer memory as a definition for a
field that can be referenced by a field name in search queries
for processing events in a field-searchable data store that acts
as a persistent repository for the events, as in independent claim
1. The Office has conceded this point by stating
"Subrahmanyam does not explicitly teach storing a completed
extraction rule that can be referenced by a field name in search
queries." Final Office Action mailed June 08, 2017, pg. 13.
App. Br. 9.
In response, the Examiner further explains the basis for the rejection:
First, Subrahmanyam teaches in paragraph [0007], that events
can be, for example, an entry in a log file or a syslog server, an
alert, an alarm, a network packet, an email, or a notification page.
Second, Subrahmanyam teaches in paragraph [0011] that a
"regex creator" receives an event that is in unstructured form and
outputs a regular expression that matches and/or extracts token
values from the event. Paragraph [0022] of the specification
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describes event records as including unstructured data as well.
Therefore, the regular expression in Subrahmanyam are able to
search through events that are unstructured, and therefore, before
they are normalized into a structured format. As such[,] based
on a reasonable interpretation in view of the specification,
Subrahmanyam teaches the claimed limitation.
Ans. 5---6.
We have reviewed Appellants' arguments in the Briefs, the
Examiner's obviousness rejections, and the Examiner's responses to
Appellants' arguments. Appellants do not proffer sufficient argument or
evidence to persuade us of error regarding the Examiner's underlying factual
findings and ultimate legal conclusion of obviousness. See Ex parte Frye,
94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). For at least the reasons
discussed below, we agree with and adopt the Examiner's findings and legal
conclusions in the Final Action and Answer.
Appellants acknowledge that "at best, the 'events' in the log data of
Subrahmanyam are not field-searchable until they are normalized into a
structured format." App. Br. 9. We particularly note that Appellants
address this same issue as a known problem with prior art approaches, as
discussed in the Background of the Specification:
However, prior to such processing, field values may need
to be extracted from the received data. Sometimes the received
data may be unstructured, which may make it difficult for
systems to efficiently analyze the received data to determine
what data may be of interest and/or how to generate a field
value extraction rule.
Spec. ,r 4 ( emphasis added).
Appellants provide a non-limiting, exemplary description for the term
unstructured data in the Specification: "In some embodiments, the machine
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data may be unstructured data, structured data, and/or a combination
thereof. Unstructured data may refer to data that does not include at least
one predefined field." Spec. ,r 21 (emphasis added).
However, we find Subrahmanyam ,r 8 addresses essentially the same
problem of automatically extracting information from an unstructured event
and mapping the information contained therein to a structured schema using
an unstructured event parser that analyzes an event that is in unstructured
form and generates an event that is in structured form:
When the format of an event is not known beforehand
or when an event includes free-form plain text, the event
is referred to as being in "unstructured form." It is difficult to
automatically extract information from an unstructured event
and map the information to a structured schema. In one
embodiment, this normalization is achieved by using an
"unstructured event parser." An unstructured event parser
analyzes an event that is in unstructured form and generates
an event that is in structured form.
Subrahmanyam ,r 8 ( emphasis added).
Appellants also provide a non-limiting, exemplary description for the
term event record in the Specification:
As used herein, the term "event record" may refer to computing
data that is collected about an event for a computing system,
including, for example, an action, characteristic, condition ( or
state) of the computing system. For example, such events may
be about a computing system's performance, actions taken by the
computing system, or the like. Event records may be obtained
from various computing log files generated by the computer's
operating system, and/or other monitoring application.
However, event records are not restricted by a file format or
structure from which the event data is obtained. In various
embodiments, event records may include structured and/or
unstructured machine data, and/or a combination thereof
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Spec. ,r 22 ( emphasis added). Cf with "events" as recited in claim 1.
In light of the context provided by the Specification (id.), we find
Subrahmanyam ,r 8 analyzes an event that is in unstructured form and
generates an event that is in structured form. Once the event is converted to
a structured form, the event can then be stored as a definition for a field that
could be referenced by a field name in search queries for processing events.
As for the claim language: "storing the completed text extraction rule
in computer memory as a definition for a field that can be referenced by a
field name in search queries for processing events in a field-searchable data
store that acts as a persistent repository for the events" ( claim 1 ),
Subrahmanyam ,r 92 describes: "In one embodiment, a normalized event
generator is parameterized so that the regular expression and the token
mappings are stored in a "parameter file" that exists separately from the rest
of the normalized event generator. In one embodiment, the regular
expression and the token mappings are expressed as properties in a
properties file."
As found by the Examiner, Kubaitis teaches a field-searchable data
store (i.e., a database) that, in combination with the other cited references,
would act as a persistent repository for the events:
Subrahmanyam does not explicitly teach storing a completed
extraction rule that can be referenced by a field name in search
queries, however, Kubaitis teaches: for a field that can be
referenced by a field name in search queries for processing
events in a field-searchable data store that acts as a persistent
repository for the events, (Kubaitis, [0100] - The text editor
allows a user to create and modify database-structured queries.
Final Act. 13 (emphasis omitted and added in italics).
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We note Ginter § 146 expressly teaches raw data: "raw data gathered
by the agents." Ginter ,r 9 also teaches the use of timestamps:
In accordance with another aspect of the invention is a method
of event reporting by an agent comprising: receiving data;
determining if said data indicates a first occurrence of an event
of interest associated with a metric since a previous periodic
reporting; . . . be performed by an agent that sends a report, said
report including one of: a timestamp which increases with time
duration, and a sequence number which increases with time
duration, used by a receiver of said report. The receiver may use
said one of said timestamp or said sequence number in
authenticating a report received by said receiver as being sent by
said agent, said receiver processing received reports having said
one of a timestamp or sequence number which is greater than
another one of a timestamp or sequence number associated with
a last report received from said agent.
Ginter ,r 9 ( emphasis added).
The Examiner relies on Inanov for teaching or suggesting the claimed
"user input:"
receiving from a user a selection of a portion of text from
the portion of machine data including in the displayed first event
(Ivanov, [0011] and [0044] - The user can select data from a
body of text);
automatically determining a text extraction rule that when
applied to the portion of machine data included in the first event
would extract the selection of the portion of text in the displayed
first event (Ivanov, [0011] and [0044] - The user
can select data from a body of text whereas the system can
automatically generate a regular expression that matches the
graphically selected text)
Final Act. 11 ( emphasis added).
On this record, we find Appellants' contentions are not persuasive,
because Appellants attack the teachings of the references in isolation and do
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not specifically rebut the Examiner's ultimate legal conclusion of
obviousness, which is based on the combined teachings and suggestions of
Ginter, Inanov, Subrahmanyam, and Kubaitis. 2 Our reviewing court guides:
"[ c ]ombining two embodiments disclosed adjacent to each other in a prior
art patent does not require a leap of inventiveness." Boston Sci. Scimed, Inc.
v. Cordis Corp., 554 F.3d 982, 991 (Fed. Cir. 2009). An obviousness
inquiry is not limited to the prior art's preferred embodiment. See, e.g.,
Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1370 (Fed. Cir. 2007).
Moreover, we find the Examiner proffered combination of features
from the cited references would have been nothing more than a predictable
result. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,401 (2007) ("[A]
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.").
Based upon a preponderance of the evidence, Appellants have not
persuaded us of error regarding the Examiner's underlying factual findings
and ultimate legal conclusion of obviousness. Accordingly, we find the
Examiner's cited combination of Ginter, Inanov, Subrahmanyam, and
Kubaitis teaches or at least suggests the contested limitation of
representative independent claim 1: 3
2 See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). One
cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references. Id.
3 "'[T]he question under 35 USC 103 is not merely what the references
expressly teach but what they would have suggested to one of ordinary skill
in the art at the time the invention was made."' Merck & Co. v. Biocraft
Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (quoting In re Lamberti, 545
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based on user input indicating that development of a text
extraction rule is complete, storing the completed text extraction
rule in computer memory as a definition for a field that can be
referenced by a field name in search queries for processing
events in a field-searchable data store that acts as a persistent
repository for the events, the events including portions of raw
machine data and corresponding timestamps.
Claim 1 ( emphasis added).
In addition, we note the conditional language employed in the
contested "based on user input indicating that development of a text
extraction rule is complete" limitation recited in claim 1 (i.e., the condition
precedent) (emphasis added). See Ex parte Schulhauser, Appeal No. 2013-
007847, 2016 WL 6277792, at *9 (PTAB, Apr. 28, 2016) (precedential)
(holding "The Examiner did not need to present evidence of the obviousness
of the remaining method steps of claim 1 that are not required to be
performed under a broadest reasonable interpretation of the claim (e.g.,
instances in which the electrocardiac signal data is not within the threshold
electrocardiac criteria such that the condition precedent for the determining
step and the remaining steps of claim 1 has not been met."); see also Ex
parte Katz, Appeal No. 2010-006083, 2011 WL 514314, at *4--5 (BPAI Jan.
27, 2011).
Applying the controlling guidance of Schulhauser here, we
additionally find the Examiner need not present evidence of the obviousness
of the conditional method step "storing the completed text extraction rule in
F.2d 747, 750 (CCPA 1976)). (emphasis added); see also MPEP § 2123 (9th
ed. 2018).
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computer memory" of claim 1 that is not required to be performed under a
broadest reasonable interpretation of the claim. 4
In particular, we conclude that claim 1 does not recite positively that
the condition precedent (i.e., "user input indicating that development of a
text extraction rule is complete"), actually occurs, or is ever required to
occur, within a broadest reasonable interpretation of the claim:
based on user input indicating that development of a text
extraction rule is complete, storing the completed text
extraction rule in computer memory as a definition for a field
that can be referenced by a field name in search queries for
processing events in a field-searchable data store that acts as a
persistent repository for the events, the events including portions
of raw machine data and corresponding timestamps.
Claim 1 ( emphasis added).
Even assuming arguendo that the completed text extraction rule is
actually stored in computer memory, we further conclude the claim language
is directed to a statement of intended purpose: i.e., "as a definition for the
field definition data that can be referenced by a field name in search queries
4 See, also e.g., Applera Corp. v. Illumina, Inc., 375 Fed. App'x. 12, 21
(Fed. Cir. 2010) (unpublished) (affirming a district court's interpretation of a
method claim as including a step that need not be practiced if the condition
for practicing the step is not met); Cybersettle, Inc. v. Nat 'l Arbitration
Forum, Inc., 243 Fed. App'x. 603, 607 (Fed. Cir. 2007) (unpublished) ("It is
of course true that method steps may be contingent. If the condition for
performing a contingent step is not satisfied, the performance recited by the
step need not be carried out in order for the claimed method to be
performed.").
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for processing events in a field-searchable data store." 5 Claim 1 ( emphasis
added).
Therefore, on this record, and based upon a preponderance of the
evidence, we are not persuaded of error regarding the Examiner's underlying
factual findings and ultimate legal conclusion of obviousness for
representative independent claim 1.
Accordingly, we sustain the Examiner's§ 103 rejection D of
representative independent claim 1. The remaining claims rejected under
rejection D (not argued separately) fall with claim 1. See "Grouping of
Claims" supra.
Rejection E of Claims 12 and 21 under§ 103(a)
Claims 12, and 21 depend from independent claims 9 and 18,
respectively. Appellants advance no further separate substantive arguments
regarding these claims. App. Br. 13-14. Instead, Appellants merely restate
the contested limitations from claim 1, and assert that these limitations are
not taught or suggested by the combination of references cited by the
Examiner. Id. Arguments not made are waived. See 37 C.F.R.
§ 4I.37(c)(l)(iv). Accordingly, we sustain the Examiner's§ 103 rejection E
5 "An intended use or purpose usually will not limit the scope of the claim
because such statements usually do no more than define a context in which
the invention operates." Boehringer Ingelheim Vetmedica, Inc. v. Schering-
Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). Although "[s]uch
statements often ... appear in the claim's preamble," In re Stencel, 828 F.2d
751, 754 (Fed. Cir. 1987), a statement of intended use or purpose can appear
elsewhere in a claim. Id.
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of dependent claims 12, and 21, for the reasons discussed above regarding
claim 1.
Rejection F of Claims 32, 39, and 46 under§ 103(a)
Claims 32, 39, and 46 depend from independent claims 1, 9 and 18,
respectively. Appellants advance no further separate substantive arguments
regarding these claims. App. Br. 14--15. Instead, Appellants merely restate
the contested limitations from claim 1, and assert that these limitations are
not taught or suggested by the combination of references cited by the
Examiner. Id. Arguments not made are waived. See 37 C.F.R.
§ 4I.37(c)(l)(iv). Accordingly, we sustain the Examiner's§ 103 rejection F
of dependent claims 32, 39, and 46, for the reasons discussed above
regarding claim 1.
DECISION
We affirm the Examiner's rejections of claims 1, 3-5, 7, 9, 12-15, 17,
18, 20-24, 26, and 29-52.
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R. § 4I.50(f).
AFFIRMED
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