David Allen. Rose

Patent Trials and Appeals Board

Sep 28, 2020

2019000625 (P.T.A.B. Sep. 28, 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.
14/698,929 04/29/2015 David Allen Rose 102005.021840 9211
71581 7590 09/28/2020
BakerHostetler / Comcast
Cira Centre, 12th Floor
2929 Arch Street
Philadelphia, PA 19104-2891
EXAMINER
TSENG, LEON Y
ART UNIT PAPER NUMBER
2441
NOTIFICATION DATE DELIVERY MODE
09/28/2020 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):
eofficemonitor@bakerlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DAVID ALLEN ROSE
____________________

Appeal 2019-000625
Application 14/698,9291
Technology Center 2400
____________________

Before ST. JOHN COURTENAY, III, MARC S. HOFF, and
KRISTEN L. DROESCH, Administrative Patent Judges.

HOFF, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s Final
Rejection of claims 1–22. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appellant’s invention is a system and method for managing network
resources. The method includes the steps of receiving first information
relating to network traffic parameters and receiving second information
relating to one or more contextual events, external to the network, having an

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant states that Comcast Cable Communications, LLC is
the real party in interest. Appeal Br. 1.
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effect on network traffic parameters. The first information and second
information are correlated. One or more network resources are then allocated
based on the correlation of the first information and second information.
Abstract.
Claim 1 is reproduced below:
1. A method comprising:

receiving, by one or more computing devices, first
information relating to network traffic parameters associated
with a network;

receiving, by the one or more computing devices, second
information relating to one or more contextual events having an
effect on the network traffic parameters, wherein the one or
more contextual events are external to the network, and wherein
the second information comprises an indication of a location of
the one or more contextual events;

correlating, by the one or more computing devices, the
first information and the second information; and

allocating one or more network resources based on the
correlation of the first information and the second information,
wherein the allocating the one or more network resources are
associated with the location of the one or more contextual
events.

REFERENCES
The prior art relied upon by the Examiner as evidence is:

Name Reference Date
Hildebrand US 2012/0144038 A1 June 7, 2012
Friedlander US 2014/0207936 A1 July 24, 2014

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Claims 1–22 stand rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter. Final Act. 5.
Claims 1–22 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hildebrand and Friedlander.
Throughout this decision, we make reference to the Specification filed
April 29, 2015 (“Spec.”); the Appeal Brief filed May 11, 2018 (“Appeal
Br.”); the Reply Brief filed Oct. 29, 2018 (“Reply Br.”); and the Examiner’s
Answer mailed August 28, 2018 (“Ans.”) for their respective details.

ISSUES
1. Does the claimed invention recite an abstract idea?
2. Does the combination of Hildebrand and Friedlander teach or
suggest receiving second information relating to one or more contextual
events having an effect on the network traffic parameters, wherein the one or
more contextual events are external to the network, and wherein the second
information comprises an indication of a location of the one or more
contextual events?

PRINCIPLES OF LAW
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. See, e.g., Alice Corp. PTY. Ltd. v. CLS
Bank Int’l, 573 U.S. 208, 216 (2014).
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In determining whether a claim falls within an excluded category,
we are guided by the Supreme Court’s two-step framework, described in
Mayo and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with
that framework, we first determine what concept the claim is “directed
to.” See Alice, 573 U.S. at 219 (“On their face, the claims before us are
drawn to the concept of intermediated settlement, i.e., the use of a third
party to mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S.
593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the
basic concept of hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978));
and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)).
Concepts determined to be patent eligible include physical and chemical
processes, such as “molding rubber products” (Diamond v. Diehr, 450
U.S. 175, 192 (1981)); “tanning, dyeing, making waterproof cloth,
vulcanizing India rubber, smelting ores” (id. at 184 n.7 (quoting Corning
v. Burden, 56 U.S. 252, 267–68 (1854))); and manufacturing flour
(Benson, 409 U.S. at 69) (citing Cochrane v. Deener, 94 U.S. 780, 785
(1876)).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 at 176, 192 (“We view respondents’
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claims as nothing more than a process for molding rubber products and not
as an attempt to patent a mathematical formula.”). Having said that, the
Supreme Court also indicated that a claim “seeking patent protection for
that formula in the abstract . . . is not accorded the protection of our patent
laws,[] and this principle cannot be circumvented by attempting to limit
the use of the formula to a particular technological environment.” Id. at
187 (“It is now commonplace that an application of a law of nature or
mathematical formula to a known structure or process may well be
deserving of patent protection.”), 192 (citing Benson and Flook).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to
transform that abstract idea into a patent-eligible invention.” Id.
The PTO recently published revised guidance on the application of
35 U.S.C. § 101. USPTO’s January 7, 2019 Memorandum, 2019 Revised
Patent Subject Matter Eligibility Guidance (“Memorandum”). 84 Fed.
Reg. 50.2 Under that guidance, we first look to whether the claim recites:

2 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (available at
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(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).

Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception
that are not “well-understood, routine, conventional” in the
field (see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Memorandum.
ANALYSIS
Section 101 rejection
Representative claim 1 recites the following limitations:
1. A method comprising:

receiving, by one or more computing devices, first
information relating to network traffic parameters associated
with a network;

https://www.uspto.gov/sites/default/files/documents/
peg_oct_2019_update.pdf) (hereinafter “84 Fed. Reg.”).
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receiving, by the one or more computing devices, second
information relating to one or more contextual events having an
effect on the network traffic parameters, wherein the one or
more contextual events are external to the network, and wherein
the second information comprises an indication of a location of
the one or more contextual events;
correlating, by the one or more computing devices, the
first information and the second information; and

allocating one or more network resources based on the
correlation of the first information and the second information,
wherein the allocating the one or more network resources are
associated with the location of the one or more contextual
events.

Independent claims 10 and 15 are of commensurate scope.
These limitations, under the broadest reasonable interpretation,
constitute steps to allocate network resources based upon the correlation of
first information relating to network traffic parameters with second
information relating to the location of contextual events external to the
network, said allocating being associated with said location.
Appellant argues that the claims are directed to a specific
improvement in computer-related technology. Appeal Br. 4. Appellant
contends that the claimed allocation of network resources associated with
the location of the one or more contextual events improves network resource
management based on events external to the network. Id. Appellant cites
Enfish: “[t]he Supreme Court has suggested that claims purport[ing] to
improve the functioning of the computer itself, or improving an existing
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technological process might not succumb to the abstract idea exception.3
Enfish, 822 F.3d at 1335.
The Examiner, in the Answer, agrees with Appellant that “the cited
portions of Appellant’s Specification demonstrate a specific improvement,
but Examiner cannot find said specific improvements within the actual
claims.” Ans. 7. The Examiner finds that the current claim limitations are
not specific enough or significantly more to overcome the rejection, because
“the terms ‘correlating’ and ‘allocating’ are very broad, and the claims do
not specify how the claim limitations are used in the claimed ‘correlating’ of
the information and.” Id.
We do not agree with the Examiner’s narrow reading of the claims.
The inquiry into what the claimed invention is “directed to” applies a “stage-
one filter to claims, considered in light of the Specification, based on
whether their character as a whole is directed to excluded subject matter.”
Enfish, 822 F.3d at 1335, (citing Internet Patents Corp. v. Active Network,
Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). Thus, we consider the claims as
a whole, in light of the Specification, to determine to what they are directed.
Appellant argues that the claims as a whole are directed to a specific
improvement in managing computer network resources based on external
events. Reply Br. 1. Appellant discloses that when events that can have an
effect on network traffic are detected, “network resources such as processing
allocation and bandwidth can be predictively adjusted to accommodate the
increased call flows.” Spec. ¶ 8. Appellant further discloses that “normal
calling patterns or historical calling patterns can be used to correlate the

3 Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016).
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increase in volume of calls to/from the lower Manhattan area with the news
and keywords obtained from” a news headline such as “Fire in Brooklyn
Building.” Spec. ¶ 25. “A predictor (e.g., traffic impact increase percentage)
can be generated based on the searchable words such as location, news
source, readership levels, and content type.” Id. Contextual information can
relate to one or more contextual events having a current or predicted effect
on the network traffic parameters, and can comprise “one or more of a call
detail record, weather information, E911 information, website information,
emergency broadcast information, video feed, news feed, and geological
information source. The contextual information can be classified and/or
filtered based on various metrics or metadata such as location, source
identifier, readership level, and content type.” Spec. ¶ 37.
We determine that the claimed invention, read in light of the
Specification, is directed to correlating (i.e., observing or determining a
mutual relationship or connection between) first information relating to
network traffic parameters on one hand, and second information relating to
the location of one or more contextual events external to the network, on the
other hand. Network resources are allocated (i.e., distributed for a particular
purpose) based on this correlation, said allocation of network resources
being associated with the location of the one or more contextual events. As a
result, we agree with Appellant that the invention is directed to a specific
improvement in managing computer network resources based on external
events.
At Step 2A, prong one, of the Memorandum, we determine that claim
1 does not recite an abstract idea. Therefore, our analysis stops. Moreover,
in applying the holding in Enfish, we determine that the claimed invention is
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not directed to an abstract idea. Accordingly, we do not sustain the
Examiner’s 35 U.S.C. § 101 rejection of claims 1–22.

35 U.S.C. § 103 Rejection over Hildebrand and Friedlander

The Examiner finds that Hildebrand teaches receiving second
information relating to one or more contextual events having an effect on the
network traffic parameters, wherein the one or more contextual events are
external to the network. Final Act. 6. The Examiner finds that Hildebrand
does not teach that the second information comprises an indication of a
location of the one or more contextual events, and does not teach allocating
network resources associated with the location of the one or more contextual
events. Final Act. 6–7. The Examiner then finds that Friedlander teaches
associating the physical location of a centroid of the cluster of the
communication on the network to be the approximate physical location of
the event, and allocating bandwidth of the network based upon the resources
and the proximity of users to the physical location of the event. Final Act. 7.
We do not agree with the Examiner that the combination of
Hildebrand and Friedlander teaches or suggests receiving information
relating to contextual events, external to the network, comprising an
indication of a location of said contextual events, as is claimed. Hildebrand
teaches meeting a surge in network traffic by allocating network resources.
Hildebrand ¶ 48. Hildebrand teaches that this “policy response could factor
in the geographic position of the predicted incoming requests.” Hildebrand
¶ 49. Hildebrand thus teaches taking into consideration the geographic
location of the users conducting Internet search requests, rather than the
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geographic location of the contextual event external to the network, as
claimed. See Reply Br. 4. Friedlander, for its part, teaches analyzing the
signals on a network to determine a physical location of a centroid of the
cluster of the communication on the network in order to glean the location of
an event. Friedlander, Abstract. Friedlander thus examines data
communication within the network, rather than analyzing information
relating to contextual events external to the network, in order to determine a
location requiring network resources.
The combination of Hildebrand and Friedlander thus fails to teach all
the limitations of the invention recited in claims 1–22. We do not sustain the
Examiner’s 35 U.S.C. § 103 rejection.

CONCLUSIONS
1. The claimed invention does not recite an abstract idea.
2. The combination of Hildebrand and Friedlander does not teach or
suggest receiving second information relating to one or more contextual
events having an effect on the network traffic parameters, wherein the one or
more contextual events are external to the network, and wherein the second
information comprises an indication of a location of the one or more
contextual events.
The Examiner’s decision to reject claims 1–22 is reversed.

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DECISION SUMMARY
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–22 101 Patent Eligible
Subject Matter
1–22
1–22 103 Hildebrand and
Friedlander
1–22
Overall
Outcome

1–22

REVERSED