Ex Parte Gilgur et al

Patent Trial and Appeal Board

Jul 31, 2018

12036167 (P.T.A.B. Jul. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/036, 167
96061 7590
Winstead PC (Dell)
PO Box 131851
FILING DATE
02/22/2008
08/02/2018
Dallas, TX 75313-1851
FIRST NAMED INVENTOR
Alexander Gilgur
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.
59961-P070US 1440
EXAMINER
GARCIA-GUERRA, DARLENE
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
08/02/2018 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):
delldocket@winstead.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEXANDER GILGUR, YUV AL LEVIN,
MICHAEL F. PERKA, AND DALE QUANTZ
Appeal2017-003726
Application 12/036,167
Technology Center 3600
Before MICHAEL J. STRAUSS, JEREMY J. CURCURI, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
LENTIVECH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants 1 appeal from the
Examiner's decision to reject claims 1-8, 10-23, and 25-29. Claims 9, 24,
and 30 have been canceled. See App. Br. 23-28 (Claims App'x). We have
jurisdiction over the pending claims under 35 U.S.C. § 6(b ).
We affirm.
1 According to Appellants, the real party in interest is Dell Software Inc.
App. Br. 3.
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Application 12/036,167
STATEMENT OF THE CASE
Appellants 'Invention
Appellants' invention generally relates to "computer-implemented
modeling and forecasting, specifically to applications in which large
numbers of scenarios have to be processed in a batch." Spec. ,r 3.
According to Appellants, "[ t ]he present invention can be used to reduce the
number of scenarios forecasted in each batch, in order to optimize the time
required to perform those forecasts." Id. Claim 1, which is illustrative,
reads as follows:
1. A computer-implemented method for optimizing runtime
and utilization of computer resources in bulk statistical data
modeling and forecasting, the method comprising:
for each scenario in a plurality of scenarios:
determining with one or more computer processors
a recommended number of collected data points that, once
accumulated via new data collection, should trigger
computation of a forecast for the scenario, the
recommended number of collected data points being
determined as a function of seasonal variation, model
uncertainty, and data quality;
determining with one or more computer processors
a cap on time to elapse since a most recent forecast of the
scenario that, once elapsed, should trigger computation of
the forecast, the cap being determined as a number
proportional to the recommended number of collected data
points;
forecasting with one or more computer processors
one or more confidence guardbands associated with future
data points;
determining, based on at least one of data behavior,
the recommended number of collected data points, and the
cap on time to elapse, when to compute the forecast;
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periodically bulk processing the plurality of
scenarios in batch to generate forecasts comprising:
for each scenario, checking newly collected
data to determine whether to adjust the
recommended number of collected data points when
the newly collected data comprises an outlier data
point that exceeds the confidence guardbands,
wherein adjusting the recommended number of
collected data points comprises including at least
two subsequent data points to ensure that the outlier
data point is not the last point in a time series,
optimizing the bulk processing by only
forecasting scenarios in the plurality of scenarios
for which the adjusted recommended number of
collected data points has been exceeded, the cap on
time to elapse has been exceeded, or at least three
data points in the newly collected data have fallen
outside the one or more confidence guardbands.
References
The Examiner relies on the following prior art in rejecting the claims:
Tzvieli us 5,659,593 Aug. 19, 1997
Singh et al. US 2002/0169657 Al Nov. 14, 2002
Harris US 2003/0158772 Al Aug. 21, 2003
Moessner US 2005/0137835 Al June 23, 2005
Lindquist et al. US 2007/0265904 Al Nov. 15, 2007
Kakouros et al. US 7,584,116 B2 Sept. 1, 2009
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Rejections
Claims 1-8, 10-23, and 25-29 stand rejected under 35 U.S.C. § 101
as being directed to judicially-excepted subject matter under 35 U.S.C.
§ 101. Final Act. 12-16.
Claims 1-8, 10, 11, 13, 15-23, 25, 26, and 28 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over the combination ofKakouros,
Singh, Moessner, and Lindquist. Final Act. 17-38.
Claims 12 and 27 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Kakouros, Singh, Moessner,
Lindquist, and Tzvieli. Final Act. 39--40.
Claims 14 and 29 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Kakouros, Singh, Moessner,
Lindquist, and Harris. Final Act. 41--42.
ANALYSIS
Re} ection under 3 5 US. C. § 101
Under 35 U.S.C. § 101, a patent may be obtained for "any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof." The Supreme Court has "long held that
this provision contains an important implicit exception: Laws of nature,
natural phenomena, and abstract ideas are not patentable." Alice Corp. v.
CLS Bankint'l, 134 S.Ct. 2347, 2354 (2014) (quotingAss'nfor Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)). The
Supreme Court in Alice reiterated the two-step framework previously set
forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566
U.S. 66, 82-84 (2012), "for distinguishing patents that claim laws of nature,
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natural phenomena, and abstract ideas from those that claim patent-eligible
applications of these concepts." Alice, 134 S.Ct. at 2355. The first step in
that analysis is to "determine whether the claims at issue are directed to one
of those patent-ineligible concepts," such as an abstract idea. The inquiry
often is whether the claims are directed to "a specific means or method" for
improving technology or whether they are simply directed to an abstract
end-result. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1311,
1314 (Fed. Circ. 2016). If the claims are not directed to a patent-ineligible
concept, the inquiry ends. Otherwise, the inquiry proceeds to the second
step, where the elements of the claims are considered "individually and 'as
an ordered combination' to determine whether the additional elements
'transform the nature of the claim' into a patent-eligible application." Alice,
134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 79--80, 1297). We, therefore,
look to whether the claims focus on a specific means or method that
improves the relevant technology or are instead directed to a result or effect
that itself is the abstract idea and merely invoke generic processes and
machinery. See Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed.
Cir. 2016).
The Examiner finds the claims are directed to "optimizing runtime
and utilization of computer resources in bulk statistical data modeling and
forecasting." Final Act. 13. The Examiner finds the claims recite
limitations "directed to mathematical equations/formulas" and "comparing
new information such as newly collected data and stored information such as
recommended number of collected data points and using rules to adjust the
recommended number of collected data points and optimize the processing
of scenarios" and, therefore, that the claims are directed to an abstract idea.
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Final Act. 13-14. The Examiner further finds that the additional elements
recited in the claims, when considered individual or as a whole, do not
amount to "significantly more" than the abstract idea. Final Act. 14--16.
Initially, Appellants contend the Examiner failed to consider each
claim as a whole and failed to consider the limitations of the claims both
individually and in combination. App. Br. 7-8. Appellants argue "the
Examiner articulates two different analyses to arrive at two different alleged
abstract ideas to which the claims are supposedly directed" (App. Br. 7) and
"[i]n each analysis, the Examiner relies upon different portions of different
alleged claim limitations to reach a different results-driven conclusion of
unpatentability" (App. Br. 8).
We do not find Appellants' arguments persuasive. A finding that a
claim is directed to multiple abstract ideas does not necessarily evidence a
failure to consider the claims as a whole or a failure to consider the
limitations of the claims both individually and in combination. See
FairWarning IP, LLC v. Iatric Systems, Inc., 839 F.3d 1089, 1093-94 (Fed.
Cir. 2016) ("Here, the claims are directed to a combination of these abstract-
idea categories."); see also RecogniCorp, LLC v. Nintendo Co., Ltd., 855
F.3d 1322, 1327 (Fed. Cir. 2017) (finding the claims directed to multiple
abstract ideas).
Appellants further contend the claims are not directed to the abstract
ideas of mathematical equations or formulas and comparing new and stored
information and using rules to adjust the recommended number of collected
data points and optimize the processing of scenarios. App. Br. 8-9.
Appellants argue the claims are not directed to mathematical equations or
formulas because the claims are not directed to performing calculations and
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do not recite any particular mathematical equation or formula for performing
calculations. App. Br. 8. Appellants further argue that courts have not
found "comparing new information such as newly collected data and stored
information such as recommended number of collected data points and using
rules to adjust the recommended number of collected data points and
optimize the processing of scenarios" to be an abstract idea. App. Br. 9.
According to Appellants, the claims are not directed to an abstract
idea but, instead, are directed to "an improvement in computer capabilities,
namely, the ability of a computer to more efficiently process large numbers
of scenarios in a batch." App. Br. 11 (citing Spec. ,r,r 6-7, 37). Appellants
argue the claims address the technical problem of how to efficiently bulk
process scenarios on a computer system and the claimed solution to this
technical problem "is concerned with efficiently using the resources of a
computer system to bulk process bulk forecasts, specifically, by reducing the
overall workload of a central processing unit and input/output devices."
App. Br. 12.
We do not find Appellants' arguments persuasive. We agree with the
Examiner that the claims are directed to the abstract idea of performing bulk
statistical data modeling and forecasting. Final Act. 13. The steps recited in
independent claims 1 and 15, including, for example, "determining ... the
recommended number of collected data points;" "determining ... a cap on
time to elapse;" "forecasting ... one or more confidence guardbands;"
"determining ... when to compute the forecast;" and "periodically bulk
processing the plurality of scenarios in batch to generate forecasts" based on
a set of rules are abstract processes of collecting and analyzing information.
Information, as such, is intangible, and data analysis, comparisons, and
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algorithms are abstract ideas. See, e.g., Microsoft Corp. v. AT&T Corp., 550
U.S. 437,451 n.12 (2007); Alice, 134 S. Ct. at 2355; Parker v. Flook, 437
U.S. 584, 589, 594--95 (1978); Gottschalkv. Benson, 409 U.S. 63, 71-72
(1972). Information collection and analysis, including when limited to
particular content, is within the realm of abstract ideas. See, e.g., Internet
Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1349 (Fed. Cir. 2015);
Digitechimage Techs., LLCv. Electronics/or Imaging, Inc., 758 F.3d 1351
(Fed. Cir. 2014); CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d
1366, 1370 (Fed. Cir. 2011). That is, "[w]ithout additional limitations, a
process that employs mathematical algorithms to manipulate existing
information to generate additional information is not patent eligible."
Digitech, 758 F.3d at 1350-51 ("Data in its ethereal, non-physical form is
simply information that does not fall under any of the categories of eligible
subject matter under section 101 ").
We are not persuaded by Appellants' argument that the claims are
directed to "an improvement in computer capabilities, namely, the ability of
a computer to more efficiently process large numbers of scenarios in a
batch." App. Br. 11. The Specification provides that the claimed process is
implemented using conventional programming techniques on conventional
hardware. See Spec. ,r 45 ("The present invention also relates to an
apparatus for performing the operations herein. This apparatus may be
specially constructed for the required purposes, or it may comprise a
general-purpose computer selectively activated or reconfigured by a
computer program stored in the computer."); ,r 46 ("The algorithms and
displays presented herein are not inherently related to any particular
computer or other apparatus .... In addition, the present invention is not
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described with reference to any particular programming language."). Merely
programming a computer to implement a process for processing large
numbers of scenarios in a batch does not change how the computer itself
operates. Appellants' claims are directed to an improvement in an algorithm
executed by a conventional computer using standard programming
techniques, and not to a specific improvement in the way the computer
operates. See Parker v. Flook, 437 U.S. 584, 595 (1978) ("[I]f a claim is
directed essentially to a method of calculating, using a mathematical
formula, even if the solution is for a specific purpose, the claimed method is
nonstatutory. ").
Turning to the second step of the analysis, Appellants argue "the
claimed solution is necessarily rooted in computer technology in order to
overcome the technical problem of how to efficiently bulk processes
scenarios on a computer system" and, therefore, recites significantly more
than the abstract idea. App. Br. 13. Appellants argue the Examiner
acknowledges that the claims are directed to optimizing runtime and
utilization of computer resources in bulk statistical data modeling and
forecasting, which "are clearly both improvements to technology and
improvements to the functioning of the computer itself in the specific
context of bulk processing forecasts or scenarios." App. Br. 14 (citing Final
Act. 13). Appellants further argue "improved runtime and utilization of
computer resources such as CPU and I/0 devices will inure benefit of end
users in the form of an improved end-user experience" and "[t]his benefit ...
is evidence of the existence of 'significantly more'." App. Br. 14.
We do not find Appellants' arguments persuasive. Appellants' claims
do not go beyond generic functions, and there are no technical means for
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performing the claimed steps that are arguably an advance over conventional
computer technology. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350, 1351 (Fed. Cir. 2016). Features such as, for example, the one or more
computer processors recited in claim 1 and the non-transitory computer-
usable medium recited in claim 15 are described and claimed generically
rather than with the specificity necessary to show how those components
provide a concrete solution to the problem addressed by the claims. The
recited features, therefore, fail to cause the claims to recite significantly
more than the abstract idea of performing bulk statistical data modeling and
forecasting.
Because claims 1-8, 10-23, and 25-29 are directed to a patent-
ineligible abstract concept, and do not recite something "significantly more"
under the second step of the Alice analysis, we sustain the Examiner's
rejection of these claims under 35 U.S.C. § 101.
Rejections under 35 USC§ 103(a)
We have reviewed the Examiner's rejections under 35 U.S.C. § 103(a)
in light of Appellants' arguments that the Examiner has erred. We disagree
with Appellants' conclusions. We adopt as our own the findings and reasons
set forth by the Examiner in the Final Office Action from which this appeal
is taken and the reasons set forth in the Examiner's Answer in response to
Appellants' Appeal Brief. Final Act. 17--42; Ans. 46-53. We highlight and
address specific findings and arguments for emphasis as follows.
Appellants contend the combination of Kakouros, Singh, Moessner,
and Lindquist fails to teach or suggest the limitations recited in claim 1
because the cited references do not teach or suggest "a recommended
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number of collected data points" and "a cap on time to elapse," as recited in
claim 1. App. Br. 15-20. Initially, Appellants contend the Examiner has
failed to establish a prima facie case of obvious. App. Br. 15-17.
Appellants argue:
[T]he Examiner cites to Kakouros, Singh, Moessner and
Lindquist in such a piecemeal fashion that Appellant is unable to
adequately determine how the Examiner purports to reconstruct
the claimed invention. Rather than provide explicit analysis of
each claim as a whole, the Examiner appears to treat each claim
element in isolation and ignore antecedent basis. The
Examiner's citations and quotations relative to one claim element
are largely incongruous with the citations and quotations made
relative to other elements of the same claim, many of which
recite some of the same claim terms. The Examiner fails to
address the invention "as claimed."
App. Br. 16. Appellants argue that because the Examiner acknowledges that
the combination of Kakouros, Singh, and Moessner does not teach or
suggest "a recommended number of collected data points" and "a cap on
time to elapse," as defined by claim 1,
[T]he Kakouros-Singh-Moessner combination necessarily
also fails to disclose certain corresponding features of claim 1
such as, for example, "determining ... a recommended number of
collected data points ... , " "determining ... a cap on time to elapse
... ," "for each scenario, checking newly collected data to
determine whether to adjust the recommended number of
collected data points ... , "and "optimizing the bulk processing by
only forecasting scenarios in the plurality of scenarios for which
the adjusted recommended number of collected data points has
been exceeded, the cap on time to elapse has been exceeded, or
at least three data points in the newly collected data have fallen
outside the one or more confidence guardbands."
App. Br. 17 ( citing Final Act. 28). Appellants further argue:
An assertion by the Examiner that Lindquist discloses the
snipped-out claim language defining the terms recommended
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number of collected data points and cap on time elapse, terms
which are used repeatedly in claim 1 with respect to several claim
features as shown above, is conclusory and prima facie deficient.
The Examiner provides no reasoning to resolve the clear failure
of the Kakouros-Singh-Moessner combination to disclose the
above claim features in the "fashion claimed." In the Office
Action, the Examiner only addresses portions of claim features
and does not provide any rational underpinning for combination
in terms of the claim as a whole.
App. Br. 17.
We do not find Appellants' contention persuasive. The Examiner
finds Kakouros teaches "a computer-implemented method for optimizing
runtime and utilization of computer resources in bulk statistical data
modeling and forecasting." Final Act. 17 (citing Kakouros 3:40-47). The
Examiner further finds Kakouros teaches that the method includes:
"determining with one or more computer processors a
recommended number of collected data points as a function of
forecast horizon and data and model quality parameters" (Final
Act. 17-18 (citing Kakouros 1:37--41; 3:40-47; 4:1-20; 6:56-
7:10));
"determining with one or more computer processors a cap on
time to elapse as a number proportional to the recommended
number of collected data points" (Final Act. 18-19 ( citing
Kakouros 6:56-67; 7:4--9; 9: 12-25));
"forecasting with one or more computer processors one or more
confidence guardbands associated with future data points" (Final
Act. 19-20 (citing Kakouros, Fig. 7; 5:11-16; 9:13-19, 27-30;
13:1-17; 16:5-15)); and
"when future data points fall outside the one or more confidence
guardband, generating with one or more computer processors a
forecast model that is unscheduled" (Final Act. 20 ( citing
Kakouros 4:20-28; 5:22-23; 10:3-8, 12-20; 13:18-24)).
The Examiner finds Singh teaches:
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"for each scenario in plurality of scenarios: determining with one
or more computer processors a recommended number of
collected data points as a function of seasonal variation, model
uncertainty, of forecast horizon and data quality" (Final Act. 22
( citing Singh ,r,r 6, 4 7, 61) );
"determining with one or more computer processors a cap on
time to elapse, the cap being determined as a number
proportional to the recommended number of collected data
points" (Final Act. 22 ( citing Singh ,r 59));
"forecasting with one or more computer processors one or more
confidence guardbands associated with future data points" (Final
Act. 23 (citing Singh ,r 60));
"determining, based on at least one of data behavior, the
recommended number of collected data points, and the cap on
time to elapse, when to compute the forecast" (Final Act. 23
(citing Singh ,r,r 82, 102));
"periodically bulk processing the plurality of scenarios in batch
to generate forecasts comprising: for each scenario, checking
newly collected data to determine whether to adjust the
recommended number of collected data points when the newly
collected data comprises an outlier data point that exceeds the
confidence guardbands" (Final Act. 24 ( citing Singh ,r,r 21, 7 4) );
and
"wherein adjusting the recommended number of collected data
points comprises including at least two subsequent data points to
ensure that the outlier data point is not the last point in a time
series" (Final Act. 24--25 ( citing Singh ,r,r 84, 85)).
The Examiner finds Moessner teaches or suggests "optimizing the bulk
processing by only forecasting scenarios in the plurality of scenarios that
exceed the adjusted recommended number of collected data points, exceed
the cap on time to elapse, or have where at least three future data points that
fall outside the one or more confidence guardbands." Final Act. 26-27
(citing Moessner ,r,r 16, 52, 53, 56). The Examiner finds Lindquist teaches
"a recommended number of collected data points that, once accumulated via
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new data collection, should trigger computation of a forecast for the
scenario" (Final Act. 28-29 ( citing Lindquist ,r,r 1, 62, 64, 66)) and
"determining with one or more computer processors a cap on time to elapse
since a most recent forecast of the scenario that, once elapsed, should trigger
computation of the forecast" (Final Act. 29 (citing Lindquist ,r,r 60, 77)). As
such, the Examiner has established a prima facie case by indicating that the
cited references render the claims obvious under 35 U.S.C. § 103(a) and
citing to specific portions of the references believed to disclose the
limitations recited in each claim. See In re Jung 637 F.3d 1356, 1363 (Fed.
Cir. 2011 ). We agree with Appellants that the claims must be read as a
whole, but to the extend Appellants argue that doing so precludes the
Examiner from relying on more than one reference for teaching the disputed
limitation, we disagree. See In re Gorman, 933 F.2d 982, 986, (Fed. Cir.
1991) ( affirming an obviousness rejection based on multiple references
because "[ t ]he criterion ... is not the number of references, but what they
would have meant to a person of ordinary skill in the field of the
invention."). Appellants have not provided sufficiently persuasive evidence
of a claim interpretation requiring any of the recited limitations to be read as
an indivisible limitation that cannot be taught by multiple references, nor
have Appellants pointed to any case law requiring such a result.
We are also not persuaded by Appellants' arguments that the
Examiner "provides no reasoning to resolve the clear failure of the
Kakouros-Singh-Moessner combination to disclose the above claim features
in the 'fashion claimed"' and "the Examiner only addresses portions of
claim features and does not provide any rational underpinning for
combination in terms of the claim as a whole." App. Br. 17. We find the
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Examiner provides the required articulated reasoning with rationale
underpinning for combining the teachings of the cited references. See Final
Act. 25-26 (finding it would be obvious to modify the teachings of
Kakouros with the teachings of Singh), 27-28 (finding it would be obvious
to modify the combined teachings of Kakouros and Singh with the teachings
of Moessner), 29-30 (finding it would be obvious to modify the combined
teachings of Kakouros, Singh, and Moessner with the teachings of
Lindquist). The Examiner's findings are reasonable because the skilled
artisan would "be able to fit the teachings of multiple patents together like
pieces of a puzzle" since the skilled artisan is "a person of ordinary
creativity, not an automaton." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,
420, 421 (2007). Appellants do not present evidence that the resulting
arrangement was "uniquely challenging or difficult for one of ordinary skill
in the art" or "represented an unobvious step over the prior art." See
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007) (citing KSR, 550 U.S. at 418-19). Accordingly, we are unpersuaded
the Examiner erred in finding the combination of Kakouros, Singh,
Moessner, and Lindquist teaches or suggests the limitations recited in claim
1.
For the foregoing reasons, we are unpersuaded the Examiner erred in
rejecting claim 1.
Regarding the rejection of claims 2-8, 10-23, and 25-29, because
Appellants have either not presented separate patentability arguments or
have reiterated substantially the same arguments as those previously
discussed for patentability of claim 1 above (see App. Br. 20-21 ), we are not
persuaded the Examiner erred in rejecting claims 2-8, 10-23, and 25-29
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under 35 U.S.C. § 103(a) for the reasons discussed supra with respect to
claim 1.
DECISION
We affirm the Examiner's rejection of claims 1-8, 10-23, and 25-29
under 35 U.S.C. § 101.
We affirm the Examiner's rejections of claims 1-8, 10-23, and 25-29
under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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