Ex Parte Kraft et al

Patent Trial and Appeal Board

Jul 30, 2018

12873810 (P.T.A.B. Jul. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/873,810 09/01/2010
113123 7590
Harrity & Harrity, LLP
11350 Random hills road
Suite 600
Fairfax, VA 22030
08/01/2018
FIRST NAMED INVENTOR
Bernhard F. Kraft
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.
0095-0019 6016
EXAMINER
THATCHER, CLINT A
ART UNIT PAPER NUMBER
2191
NOTIFICATION DATE DELIVERY MODE
08/01/2018 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):
docket@harrityllp.com
mpick@harrity llp .com
ptomail @harrity llp. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BERNHARD F. KRAFT, SHANTIPRAKASH MOTWANI,
COLIN P. JARRETT, ANIRUDHA SINGH, REVA MODI,
VIKRANT SHY AMKANT KAULGUD, and
VIBHU SAUJANY A SHARMA
Appeal 2018-001154
Application 12/873,810 1
Technology Center 2100
Before JAMES R. HUGHES, KRISTEN L. DROESCH, and
KAMRAN JIVANI, Administrative Patent Judges.
HUGHES, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Decision rejecting claims 1-8, 11, 13, 14, 16-19, and 21-
25. Claims 9, 10, 12, 15, and 20 have been canceled. Final Act. 1-2. 2 We
have jurisdiction under 35 U.S.C. § 6(b). We reverse.
1 According to Appellants, the real party in interest is Accenture Global
Services Limited. Appeal Br. 3.
2 We refer to Appellants' Specification ("Spec.") filed Sept. 1, 2010
(claiming benefit of India Patent App. No. 1987/MUM/2009, filed Sept. 1,
2009); Appeal Brief ("Appeal Br.") filed June 20, 2017; and Reply Brief
Appeal 2018-001154
Application 12/873,810
Appellants 'Invention
The invention at issue on appeal concerns computer readable media,
apparatuses, and methods evaluating software code quality by determining a
first code quality index based on an automated review of each of a plurality
of coding violation indications, determining a second code quality index
based on a manual review of each of the plurality of coding violation
indications, and determining a third code quality index by an averaging the
first code quality index and the second code quality index. (Spec. ,r,r 1, 7;
Abstract.)
Illustrative Claim
Independent claim 1, reproduced below, further illustrates the
invention:
1. A method comprising:
receiving, by a device, a plurality of coding violation
indications associated with one or more portions of code;
categorizing, by the device, the plurality of coding
violation indications based on a plurality of coding quality
attributes to create a plurality of categorized violation
indications;
determining, by the device and based on the plurality of
categorized violation indications, a first code quality index for
each of the plurality of coding quality attributes,
the first code quality index being determined based on
an automated review of each of the plurality of coding violation
indications;
("Reply Br.") filed Nov. 13, 2017. We also refer to the Examiner's Final
Office Action (Final Rejection) ("Final Act.") mailed Dec. 30, 2016; and
Answer ("Ans.") mailed Oct. 5, 2017.
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Application 12/873,810
receiving, by the device, information associated with a
second code quality index for each of the plurality of coding
quality attributes,
the information associated with the second code
quality index for each of the plurality of coding quality
attributes being determined based on a manual review of each
of the plurality of coding violation indications;
determining, by the device and based on the first code
quality index and the second code quality index, a third code
quality index,
the third code quality index being an average of the
first code quality index and the second code quality index; and
providing, by the device and for presentation, quality
information associated with the one or more portions of the
code,
the quality information including:
information identifying each of the plurality of
coding quality attributes,
a respective first code quality index associated
with each of the plurality
of coding quality attributes,
a respective second code quality index associated
with each of the plurality of coding quality attributes, and
a respective third code quality index associated
with each of the plurality of coding quality attributes.
Rejection on Appea/3
The Examiner rejects claims 1-8, 11, 13, 14, 16-19, and 21-2 5 under
35 U.S.C. § 101 as being directed to patent ineligible subject matter. See
Reply Br. 2-5.
3 The Examiner rejected claims 1-8, 11, 13, 14, 16-19, and 21-25 under
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ISSUE
Based upon our review of the administrative record, Appellants'
contentions, and the Examiner's findings and conclusions, the pivotal issue
before us follows:
Did the Examiner err in finding Appellants' claims were directed to
patent-ineligible subject matter under 35 U.S.C. § 101?
ANALYSIS
The Examiner provides the same reasoning for rejecting independent
claim 1 and independent claims 11 and 21, and rejects representative claim 1
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter.
Ans. 2-5. Specifically, the Examiner rejects claim 1 as being directed
to patent-ineligible subject matter in that the claim recites collecting
information, analyzing it, and displaying certain results of the collection and
analysis[, which] is an idea of itself' (Ans. 3). See Ans. 3--4. Appellants
contend the claim 1 ( and the other pending claims) are not directed to an
35 U.S.C. § 101 as being directed to patent-ineligible subject matter in the
Final Office Action, based on finding that the instant claims were analogous
to those found patent ineligible in Cybeifone and Smartgene. See Final Act.
2--4 (citing Cybeifone Systems, LLC v. CNN Interactive Group, Inc., 558
Fed. Appx. 988, 992 (Fed. Cir. 2014); SmartGene, Inc. v. Advanced
Biological Laboratories, SA, 555 Fed. Appx. 950, 955 (Fed. Cir. 2014)).
The Examiner withdrew the previous§ 101 rejection in the Examiner's
Answer and replaced it with a new§ 101 rejection (a new ground of
rejection) based on finding that the instant claims were analogous to Electric
Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016).
See Ans. 2-5. Accordingly, we address only the rejection properly before
us-the Examiner's new ground of rejection presented in the Examiner's
Answer.
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abstract idea because the Examiner's interpretation of the claims and § 101
analysis are incorrect. Specifically, Appellants contend, inter alia, that:
Unlike Electric Power Group, the present claims do not
merely focus on a desirable result, but actually provide an
inventive means of efficiently analyzing software code so that a
software code quality and all potential coding standards
violations can be determined for the software code.
Reply Br. 3.
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. Pty.
Ltd. 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, 77-80 (2012), "for distinguishing patents
that claim laws of nature, natural phenomena, and abstract ideas from those
that claim patent-eligible applications of those concepts." Alice, 134 S. Ct.
at 2355. Assuming that a claim nominally falls within one of the statutory
categories of machine, manufacture, process, or composition of matter, the
first step in the analysis is to "determine whether the claims at issue are
directed to one of those patent-ineligible concepts" (id.), e.g., to an abstract
idea. For example, abstract ideas include, but are not limited to,
fundamental economic practices, methods of organizing human activities, an
idea of itself, and mathematical formulas or relationships. Id. at 2355-57. If
the claims are not directed to an abstract idea, the inquiry ends. Otherwise,
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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 78-79). This second step is described as "a search for an "'inventive
concept"'-i.e., an element or combination of elements that is ' ...
significantly more than ... the [ineligible concept] itself."' Id. at 2355
(alteration in original) (quoting Mayo, 566 U.S. at 72-73).
Alice Step 1 Analysis
Turning to the first step of the eligibility analysis, "the first step in the
Alice inquiry ... asks whether the focus of the claims is on the specific
asserted improvement in computer capabilities ... or, instead, on a process
that qualifies as an 'abstract idea' for which computers are invoked merely
as a tool." Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed.
Cir. 2016). "The abstract idea exception prevents patenting a result where
'it matters not by what process or machinery the result is accomplished."'
McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299, 1312
(Fed. Cir. 2016) (quoting O'Reilly v. Morse, 56 U.S. (15 How.) 62, 113
(1853)). "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." McRO, 837 F.3d at 1314.
The Examiner finds the limitations of claim 1 are analogous to the
claims found patent-ineligible in Electric Power Group. See Ans. 3--4. In
particular, the Examiner finds claim 1 is directed to the result or "idea of
itself' (Ans. 3) of "collecting information, analyzing it, and displaying
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certain results of the collection and analysis." Ans. 3. The Examiner
explains that claim 1 recites "collecting information" (Ans. 3, emphasis
omitted), in that the device receives information- coding violation
indications and information associated with the second quality code index;
recites "analyzing information" (Ans. 4, emphasis omitted), in that the
device categorizes information and determines indexes; and recites
"displaying certain results of the collection and analysis" (Ans. 4, emphasis
omitted), by displaying the indexes and coding quality attributes. See Ans.
3--4.
We agree with Appellants that claim 1 ( and the other pending claims)
is not directed solely to an abstract concept or idea, and is not analogous to
the claims found patent-ineligible in Electric Power Group. In Electric
Power Group, the claim at issue recited a "method of detecting events on
an interconnected electric power grid in real time over a wide area and
automatically analyzing the events" by "receiving ... data streams,"
"receiving data from other power system data sources," and "receiving data
from a plurality of non-grid data sources," "detecting and analyzing events .
. . based on ... limits, sensitivities and rates of change ... and dynamic
stability metrics," and "displaying the event analysis results." Elec. Power
Grp., 830 F.3d at 1351-52 (quoting claim 12). The Federal Circuit
determined that the "focus of the asserted claims, as illustrated by claim 12
quoted above, [was] on collecting information, analyzing it, and displaying
certain results of the collection and analysis." Elec. Power Grp., 830 F.3d at
1353. The court further explained, "The advance [the claim] purport[s] to
make is a process of gathering and analyzing information of a specified
content, then displaying the results, and not any particular assertedly
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inventive technology for performing those functions." Elec. Power Grp.,
830 F.3d at 1354. In summary, the court found the focus of the claims in
Electric Power Group was on displaying the result data analysis, where
the data analysis ( detecting and analyzing events) merely compared
measurements to limits (and/or sensitivities, and/ or rates of change) and
further to derived metrics. See Elec. Power Grp., 830 F.3d at 1353-54. The
analysis (above-described comparison), however, was not recited in any
detail in the claim-the claim recited the "what," (the results), but not the
"how" (the process by which the results were obtained). See id.
Appellants' claim 1 recites categorizing coding violation indications
based on coding quality attributes; determining a first code quality index
for each coding quality attribute-by an automated review of the coding
violation indications based on the categorized violation indications; and
determining a third code quality index (for each coding quality attribute),
which is an average of the first code quality index and a second code quality
index----determined by a manual review of each coding violation indication.
Subsequent to the categorization and analysis, the resulting quality
information (including the indexes and coding quality attributes) for a
portion of software code is displayed for review. See Appeal Br. 32-33
(Claim Appendix, claim 1 ). In the instant claim, the focus is not on
displaying the results of the analysis ( quality information), but instead, upon
the processes of obtaining the quality information ( categorization, analysis,
and generating indexes). Thus, we agree with Appellants that claim 1 is not
directed to an abstract idea as set out in the first step of the Alice eligibility
analysis.
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Consequently, we are constrained by the record before us to find that
the Examiner erred in finding Appellants' claim 1 was directed to patent-
ineligible subject matter under 35 U.S.C. § 101. Independent claims 11 and
21 include limitations of commensurate scope. Claims 2-8, 13, 14, 16-19,
and 22-25 depend on claims 1, 11, and 21, respectively. Accordingly, we
reverse the Examiner's rejection under§ 101 of claims 1-8, 11, 13, 14, 16-
19, and 21-25.
CONCLUSION
Appellants have shown that the Examiner erred in rejecting claims 1-
8, 11, 13, 14, 16-19, and 21-25 under 35 U.S.C. § 101.
DECISION
We reverse the Examiner's rejections of claims 1-8, 11, 13, 14, 16-
19, and 21-25.
REVERSED
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