Page, Mike et al.

Patent Trials and Appeals Board

Jun 4, 2020

11966540 - (D) (P.T.A.B. Jun. 4, 2020)

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.
11/966,540 12/28/2007 Mike Page 0113-US-01 5305
83579 7590 06/04/2020
LEVEL 3 COMMUNICATIONS, LLC
Attn: Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
EXAMINER
NGUYEN, LOAN T
ART UNIT PAPER NUMBER
2158
NOTIFICATION DATE DELIVERY MODE
06/04/2020 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):
patent.docketing@centurylink.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MIKE PAGE and JEFF COX
Appeal 2019-001795
Application 11/966,540
Technology Center 2100
Before MAHSHID D. SAADAT, CARL L. SILVERMAN, and
MICHAEL J. ENGLE, Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 9–13, 15–20, and 22–27, which are all of the
claims pending in the application. A telephonic hearing was held on May
14, 2020. 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). Appellant identifies Level 3 Communications, LLC as the
real party in interest. Appeal Br. 3.
Appeal 2019-001795
Application 11/966,540

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TECHNOLOGY
The application relates to techniques to “monitor back-up write events
from the database servers on the network to a network back-up server and
correct failed back-up attempts.” Spec. Abstract.
ILLUSTRATIVE CLAIM
Claim 9 is illustrative and reproduced below with certain limitations at
issue emphasized:
9. A method on a computer of administering a plurality of
database servers connected within a network comprising:
requesting event log information from each of the plurality
of database servers within the network, the database servers each
comprising one or more databases;
receiving the requested event log information;
parsing the event log information to identify one or more
of an event entry indicating a successful database back-up write
and an event entry indicating a failed database back-up write to
a first network back-up server;
creating, upon identification of the failed database back-
up write, a configuration file adapted to cause a specific database
server experiencing the failed database back-up write to attempt
a new database back-up write to correct the failed database back-
up write;
transmitting the configuration file to the specific database
server;
requesting configuration information from the specific
database server, wherein the configuration information
comprises at least a state of the specific database server;
receiving the configuration information from the specific
database server; and
altering, based on the configuration information, a
frequency of the new database back-up write.
Appeal 2019-001795
Application 11/966,540

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REFERENCES
The Examiner relies upon the following prior art references:
Clark US 2007/0198789 A1 Aug. 23, 2007
Ojalvo US 7,882,073 B1 Feb. 1, 2011
Terretta US 2001/0027491 A1 Oct. 4, 2001
REJECTIONS
Claims 9–13, 15–20, and 22–27 stand rejected under 35 U.S.C. § 101
as being directed to an abstract idea without significantly more. Final Act.
9–10.
Claims 9–13, 15–20, and 22–27 stand rejected under 35 U.S.C. § 103
as obvious over the combination of Clark, Ojalvo, and Terretta. Final Act.
12.
ISSUES
1. Did the Examiner err in concluding that claim 9 was directed to
an abstract idea without significantly more?
2. Did the Examiner err in finding Ojalvo teaches or suggests
“requesting configuration information from the specific database server,
wherein the configuration information comprises at least a state of the
specific database server” and “receiving the configuration information from
the specific database server,” as recited in claim 9?
ANALYSIS
§ 101
In 2019, the U.S. Patent & Trademark Office published revised
guidance on the application of § 101. USPTO, 2019 Revised Patent Subject
Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”);
USPTO, October 2019 Update: Subject Matter Eligibility, available at
Appeal 2019-001795
Application 11/966,540

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https://www.uspto.gov/sites/default/files/documents/
peg_oct_2019_update.pdf (“Oct. Update”). Under that guidance, we look to
the following steps to determine whether the claim recites the following
items:
USPTO
Step Does the claim recite ___? MPEP §
1 A process, machine, manufacture, or composition of matter 2106.03
2A, Prong 1
A judicial exception, such as a law of nature or
any of the following groupings of abstract
ideas:
1) Mathematical concepts, such as
mathematical formulas;
2) Certain methods of organizing human
activity, such as a fundamental
economic practice; or
3) Mental processes, such as an observation
or evaluation performed in the human
mind.
2106.04
2A, Prong 2 Any additional limitations that integrate the judicial exception into a practical application
2106.05(a)–
(c), (e)–(h)
2B
Any additional limitations beyond the judicial
exception that, alone or in combination, were
not “well-understood, routine, conventional”
2106.05(d)
See Guidance 52, 55, 56. Under the Guidance, if the claim does not recite a
judicial exception, then it is eligible under § 101 and no further analysis is
necessary. Id. at 54. Similarly, under the Guidance, “if the claim as a whole
integrates the recited judicial exception into a practical application of that
exception,” then no further analysis is necessary. Id. at 53, 54. Here, neither
Appellant nor the Examiner raise any dispute with respect to USPTO Step 1,
so we focus our analysis on USPTO Step 2A, Prongs 1 and 2.
Appeal 2019-001795
Application 11/966,540

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The Examiner concludes that the first three method steps (specifically,
the first “requesting” step, the first “receiving” step, and the “parsing” step)
are “similar to other ideas found to be abstract by various courts, such as
[d]ata recognition and storage.” Ans. 8. The Examiner further concludes
that the remaining steps “are routine functions being implemented on a
generic computer” that “are merely field of use and insignificant extra-
solution activities.” Id.
For USPTO Step 2A, Prong 1, we agree with the Examiner that parts
of the independent claims recite an abstract idea. For example, “receiving
. . . information” and “parsing the . . . information” can be performed
entirely in the human mind and therefore constitute mental processes, which
are an abstract idea. Guidance 52. Nevertheless, for Prong 2, we agree with
Appellant that here the additional elements beyond the abstract idea
integrate that abstract idea into a practical application. For example, the
specific information requested, received, and parsed is “event log
information” that is used “to identify” entries “indicating a successful
database back-up write” and “a failed database back-up write.” “[U]pon
identification of the failed database back-up write,” the claims require
“creating . . . a configuration file” that will cause the database server with
the failed back-up “to attempt a new database back-up write to correct the
failed database back-up write.” The claims separately require requesting and
receiving “configuration information” from the same database server with
the failed back-up and “altering . . . a frequency of the new database back-up
write” “based on the configuration information.” This is significantly more
than merely “data recognition and storage,” field of use, or insignificant
extra-solution activities. Instead, such additional elements set forth how to
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Application 11/966,540

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address a failed back-up, i.e., the solution itself. See RecogniCorp, LLC v.
Nintendo Co., 855 F.3d 1322, 1326 (Fed. Cir. 2017) (“[S]oftware patent
claims satisfy Alice step one when they are directed to a specific
implementation of a solution to a problem in the software arts, such as an
improvement in the functioning of a computer.” (quotation omitted)).
Accordingly, we do not sustain the Examiner’s rejection under § 101
of independent claims 9, 16, and 23, and their dependent claims 10–13, 15,
17–20, 22, and 24–27.
§ 103
Independent claims 9, 16, and 23 recite “requesting configuration
information from the specific database server, wherein the configuration
information comprises at least a state of the specific database server” and
“receiving the configuration information from the specific database server.”
The Examiner relies on Ojalvo as teaching or suggesting these
limitations. Ans. 11. According to the Examiner, in Ojalvo, “the database
server . . . operates to receive back up request, wherein the backup requests
identifies a plurality of database components (configuration information)”
and the database server “monitors status (state) of each of plurality of server
backup request (success and/or failure).” Id. (citing Ojalvo 3:1–26, 4:20–26,
4:40–63). At best, this demonstrates that information is requested and
received by the database server. The claims, however, require requesting
and receiving such information from the database server. The Examiner has
not sufficiently explained how Ojalvo teaches this limitation.
Accordingly, we do not sustain the Examiner’s rejection of
independent claims 9, 16, and 23, and their dependent claims 10–13, 15, 17–
20, 22, and 24–27.
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Application 11/966,540

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DECISION
The following table summarizes the outcome of each rejection:
Claims
Rejected 35 U.S.C. §
Basis /
Reference(s) Affirmed Reversed
9–13, 15–20,
22–27
101 Eligibility 9–13, 15–20,
22–27
9–13, 15–20,
22–27
103 Clark, Ojalvo,
Terretta
9–13, 15–20,
22–27
Overall 9–13, 15–20, 22–27
REVERSED