HEWLETT PACKARD ENTERPRISE DEVELOPMENT LP

Patent Trials and Appeals Board

Feb 15, 2022

2021000106 (P.T.A.B. Feb. 15, 2022)

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. 15/182,119 06/14/2016 AMITAI SHLOMO SHTOSSEL 90197759 4257 146568 7590 02/15/2022 MICRO FOCUS LLC 500 Westover Drive #12603 Sanford, NC 27330 EXAMINER ROSTAMI, MOHAMMAD S ART UNIT PAPER NUMBER 2154 NOTIFICATION DATE DELIVERY MODE 02/15/2022 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): software.ip.mail@microfocus.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte AMITAI SHLOMO SHTOSSEL, LIOZ MEDINA, and ELI REVACH Appeal 2021-000106 Application 15/182,119 Technology Center 2100 Before JOSEPH L. DIXON, BETH Z. SHAW, and JAMES W. DEJMEK, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 2, 6-18, 21, and 22. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a) (2019). Appellant identifies the real party in interest as MICRO FOCUS LLC. Appeal Br. 3. Appeal 2021-000106 Application 15/182,119 2 CLAIMED SUBJECT MATTER The claims are directed to clustering log messages using probabilistic data structures. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A non-transitory computer-readable storage medium comprising instructions executable by a processor to: tokenize a received log message into a plurality of tokens; query a probabilistic data structure to test whether a number of tokens of the plurality of tokens contained in representative log messages exceeds a threshold number, wherein the representative log messages are included in respective existing clusters and a presence of text contained within the representative log messages is represented by the probabilistic data structure; and in response to the number of tokens exceeding the threshold number: determine a first degree of similarity between the received log message and a first representative log message of a first existing cluster of the existing clusters; and based on the first degree of similarity exceeding a threshold similarity, add the received log message to the first existing cluster. Appeal 2021-000106 Application 15/182,119 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Ganesh et al. US 2009/0292679 A1 Nov. 26, 2009 Cohen et al. US 8,209,567 B2 June 26, 2012 Chandrasekharappa et al. (Chand) US 2013/0018884 A1 Jan. 17, 2013 Hegerty et al. US 2016/0154861 A1 June 2, 2016 REJECTIONS Claims 1, 2, 12-16, 21, and 22 stand rejected under 35 U.S.C. § 103 as being unpatentable over Ganesh in view of Chand in view of Hegerty. Claims 6-11 stand rejected under 35 U.S.C. § 103 as being unpatentable over Ganesh, Chand, and Hegerty in view of Cohen. OPINION 35 U.S.C.103 Claims 1, 16, and 21 We are bound by the controlling guidance of our reviewing court: “[i]t is the claims that measure the invention.” See SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc) (citations omitted); In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (citations omitted) (“[T]he name of the game is the claim.”) (emphasis added). “Though understanding the claim language may be aided by the explanations contained in the written description, it is important not to import into a claim limitations that are not a part of the claim.” SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). “We have cautioned against reading limitations into a claim from the preferred Appeal 2021-000106 Application 15/182,119 4 embodiment described in the specification, even if it is the only embodiment described, absent clear disclaimer in the [S]pecification.” In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the [E]xaminer’s rejections.”). As articulated by the Federal Circuit, the Examiner’s burden of proving non-patentability is by a preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (“[P]reponderance of the evidence is the standard that must be met by the PTO in making rejections.”). “A rejection based on section 103 clearly must rest on a factual basis.” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” Id. Upon review of the evidence and each of the respective positions set forth in the record, we find that the preponderance of evidence supports Appellant’s position in the record. Accordingly, we reverse each of the Examiner’s rejections on appeal essentially for the reasons set forth in the record by Appellant, and add the following for emphasis. With respect to independent claims 1, 16, and 21, Appellant does not set forth separate arguments for patentability, but we find each of the independent claims contains similar claim language. Appeal Br. 8. As a Appeal 2021-000106 Application 15/182,119 5 result, we select independent claim 1 as the illustrative claim and address Appellant’s arguments thereto. Appellant argues that independent claim 1 sets forth a two-part process to determine whether to cluster a received log message into an existing cluster or create a new cluster, and claim 1 recites instructions that are executable by a processor to “query a probabilistic data structure to test whether a number of tokens contained in representative log messages exceeds a threshold number; and in response to the number of tokens exceeding the threshold number, determine a first degree of similarity and based on the first degree of similarity exceeding a threshold similarity, add the received log message to a first existing cluster.” Appeal Br. 8. Appellant further argues that Ganesh, Chand, and Hegerty fail to disclose or suggest the two-part process of claim 1. Appeal Br. 8. Appellant contends that Ganesh discusses the use of the Bloom filter for a cascading index, but there is no discussion regarding messages, log messages, querying a probabilistic data structure to test whether a number of tokens are contained in representative log messages exceeds the threshold number. Appeal Br. 9. Appellant also argues that Chand discusses processing log messages with regards to electronic communications between individuals, but not the claimed log messages, as disclosed in paragraphs 7 and 8 of the Specification. Appeal Br. 9. In addition, Appellant argues that Chand fails to disclose or render obvious any of the two-part test of claim 1, as Chand, whether considered singularly or in combination with Ganesh, fails to disclose or render obvious the elements of claim 1 pertaining to the processing of log messages. Appeal Br. 9-10. Appeal 2021-000106 Application 15/182,119 6 Paragraph 7 of Appellant’s Specification describes “a ‘log message’ is a textual message[]. In some examples, log messages may include human- readable text.” Paragraph 8 sets forth non-limiting examples of log messages. As a result, we cannot agree with Appellant that Chand does not pertain to log messages because log messages may include human-readable text. Appellant further contends that Chand discusses a number of tokens, but these are a number of tokens that are similar between received incoming e-mails and spam e-mails as part of a determination of a similarity measure between incoming and spam e-mails. Appeal Br. 10. Appellant contends that in Chand, the “number” is a number used to determine a similarity measure, not a number that triggers the determination of a similarity in response to the number exceeding a threshold where the step of determining a degree of similarity in response to a number of tokens exceeding a threshold number. Appeal Br. 10. The Examiner does not specifically respond to Appellant’s argument, and the Examiner merely finds that independent claim 1 is not a “two-part test,” but rather finds that claim 1 is a “one part test” because “Claim 1, never mentions new cluster.” Ans. 10. We disagree with the Examiner and find that the “two-part test” is a directed to the two separate or different determinations. We agree with Appellant that the first determination is the “query a probabilistic data structure to test whether a number of tokens of the plurality of tokens contained in representative log messages exceeds a threshold number,” and the second determination is “in response to the number of tokens exceeding the threshold number: determine a first degree of similarity.” Appeal 2021-000106 Application 15/182,119 7 The Examiner repeatedly identifies that Chand discloses “determining a degree of similarity between the first set of tokens and the second set of tokens; and identifying the incoming e-mail as spam if the degree of similarity exceeds a predetermined threshold.” See generally Ans. 4, 6, 7, 8, 9, 12, 13; Final Act. 5, 6. We disagree with the Examiner that the cited portions of Chand teach or suggest determining a number of tokens that exceed a threshold as a condition precedent to a subsequent similarity determination or other action. Additionally, the Examiner identifies that Hegerty teaches “query a probabilistic data structure to test whether a number of tokens of the plurality of tokens contained in representative [log messages] exceeds a threshold number.” Ans. 10-11. The Examiner further finds that Chand teaches the “tokenizing . . . log messages.” Ans. 11. Again, we agree with Appellant that the cited portions of Hegerty do not teach or suggest the step of query a probabilistic data structure to test whether a number of tokens of the plurality of tokens contained in representative log messages exceeds a threshold number. Appeal Br. 10-11. Rather, we agree with Appellant that Hegerty discloses that the unique combination (where each unique combination includes a variant-token) has a confidence score greater than a threshold confidence score. Appeal Br. 10- 11; Hegerty, Abstract. In Hegerty, the unique combination is not a number of tokens, and Hegerty does not test whether the number of tokens exceeds a threshold. As a result, we find that the Examiner has not shown a clear factual basis in the grounds of the rejection supported by a preponderance of the evidence that the combination of prior art references teach or suggest the specific sequence of steps (instructions) recited in recited in the language of Appeal 2021-000106 Application 15/182,119 8 independent claim 1. Because the Examiner has not shown each of the elements of independent claim 1, we cannot sustain the obviousness rejection of independent claim 1 and independent claims 16 and 21 which recite similar limitations. See generally Ans. 4-7. Claim 16 With respect to dependent claim 16, Appellant relies upon the arguments advanced with respect to independent claim 1 that we found persuasive of error. Appeal Br. 11-12. Because Appellant identified error in the obviousness rejection of claim 1, we reverse the Examiner’s obviousness rejection of dependent claim 16. Claims 2, 12, 13, 14, 15, and 22 With respect to dependent claims 2, 12, 13, 14, 15, and 22, Appellant relies upon the arguments advanced with respect to independent claim 1 that we found persuasive of error. Appeal Br. 12. Because Appellant identified error in the obviousness rejection of claim 1, we reverse the Examiner’s obviousness rejection of dependent claims 2, 12, 13, 14, 15, and 22. Claims 6, 7, 9, 10, and 11 With respect to dependent claims 6, 7, 9, 10, and 11, Appellant relies upon the arguments advanced with respect to independent claim 1 that we found persuasive of error. Appeal Br. 14. Because Appellant identified error in the obviousness rejection of claim 1, we reverse the Examiner’s obviousness rejection of dependent claims 6, 7, 9, 10, and 11. Appeal 2021-000106 Application 15/182,119 9 Claim 8 Appellant separately argues that claim 8 depends from claim 7 (which depends from independent claim 1) and recites that the existing clusters are stored in a cluster database; and the instructions, when executed by the processor, cause the processor to store the subset of the existing clusters including the second cluster in a cluster cache in response to the second existing cluster having received a log message within a previous predetermined threshold period of time. Appeal Br. 12-13. Appellant further argues that Ganesh fails to disclose or render obvious a cache or any policy regarding when to store a subset of clusters in such a cache. Appeal Br. 13. The Examiner merely quotes paragraph 33 of Ganesh in the statement of the rejection of dependent claim 8, and the Examiner does not provide further details regarding the limitation “storing a subset of clusters within a cluster cache or storing a subset of existing clusters within a cluster cache in response to an existing cluster having received a log message within a predetermined threshold period of time.” Final Act. 13; Ans. 14-15. In the Answer, the Examiner repeats the same quotation of paragraph 33 from Ganesh regarding caching clusters, and the Examiner additionally cites to paragraphs 71 and 77 of Chand. Ans. 14-15. Appellant argues that the Examiner presents the same content from paragraph 33 of Ganesh, and the Examiner additionally cites to paragraph 77 of Chand. Reply Br. 3-4. Appellant argues that the cited paragraphs (71 and 77) in Chand discuss storing cluster e-mails in a spam database, but Chand does not mention caching, a cache policy, or any policy regarding when to store a subset of clusters in a cache. Reply Br. 3-4. We agree with Appellant that the Examiner has not sufficiently explained how these cited Appeal 2021-000106 Application 15/182,119 10 teachings individually or combined teach or suggest the limitations of dependent claim 8, and we cannot sustain the obviousness rejection of dependent claim 8 for this additional reason. CONCLUSION We reverse the Examiner’s obviousness rejections of claims 1, 2, 6- 16, 21, and 22. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 12-16, 21, 22 103 Ganesh, Chand, Hegerty 1, 2, 12-16, 21, 22 6-11 103 Ganesh, Chand, Hegerty, Cohen 6-11 Overall Outcome 1, 2, 6-16, 21, 22 REVERSED