Ex Parte Cohen et al

Patent Trial and Appeal Board

Mar 20, 2018

13454572 (P.T.A.B. Mar. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/454,572 04/24/2012 Ira Cohen
56436 7590 03/22/2018
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82963059 1031
EXAMINER
DINH, LYNDA
ART UNIT PAPER NUMBER
2863
NOTIFICATION DATE DELIVERY MODE
03/22/2018 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):
hpe.ip.mail@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IRA COHEN, MARINA L YAN, ODED GAZIT,
OHAD ASSULIN, and MICHAEL ROZMAN
Appeal2017-006937
Application 13/454,572
Technology Center 2800
Before KAREN M. HASTINGS, JAMES C. HOUSEL, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
CASHION, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision finally rejecting claims 1, 2, and 4-21. We have jurisdiction under
35 U.S.C. § 6(b ).
We affirm.
1 The real party in interest is identified as Hewlett Packard Enterprise
Development, LP. App. Br. 3.
Appeal2017-006937
Application 13/454,572
STATEMENT OF THE CASE
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below:
1. A method for detecting abnormal behavior in a computing system,
the method comprising:
receiving from an abnormal detection system comprising a processing
device:
a mean value of a metric of the computing system at a previous
time interval assembled by the abnormal detection system; and
a sum of squares of the metric of the computing system at the
previous time interval assembled by the abnormal detection system;
receiving from the computing system a sample of the metric of the
computing system at a current time interval;
assigning, by the abnormal detection system, a first weight to the
sample and a second weight to the mean value of the metric and the sum of
squares of the metric;
adjusting, by the abnormal detection system, the first weight and the
second weight at the current time interval, wherein the first weight is
increased and the second weight is decreased in response to a system change
report indicating an addition or removal of a physical hardware component
to the computing system has occurred;
calculating, by the abnormal detection system, a mean value of the
metric and a sum of squares of the metric at the current time interval based
on the adjusted first weight and the adjusted second weight, the calculation
of the mean value of the metric at the current time interval based on the
mean value of the metric at the previous time interval; and
detecting, by the abnormal detection system, abnormal behavior by
comparing the sample to an outlier value based on the mean value of the
metric and the sum of squares of the metric at the previous time interval.
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Independent claims 6 (non-transitory computer-readable medium) and
11 (abnormal behavior system) also require causing a computer to
perform/execute the steps detailed in the method of independent claim 1.
REJECTION UNDER 35 U.S.C. § 101 (Ineligible Subject Matter)
Appellants request review of the Examiner's rejection of claims 1, 2,
and 4-21under35 U.S.C. § 101 as directed to a judicial exception (i.e., a
law of nature, a natural phenomenon, or an abstract idea) without
significantly more. App. Br. 1 O; Final Act. 4.
Appellants argue independent claims 1, 6, and 11 together and present
separate arguments for dependent claims 2, 4, 5, 7-10, and 12-21. See
generally Appeal and Reply Briefs. Accordingly, we select claim 1 as
representative of the subject matter before us for review on appeal with the
understanding that our discussion also applies to independent claims 6 and
11. Claims 6 and 11 stand or fall with claim 1. We address the arguments
for the dependent claims separately.
ANALYSIS
Claim 1
This rejection is based on the Examiner's determination that the
subject matter of claim 1 is directed to ineligible subject matter because it
recites a mathematical function and an idea itself, both of which being
abstract ideas falling under the judicial exceptions under 35 U.S.C. § 101.
Ans. 3--4. According to the Examiner, the claim is directed to manipulation
of data held as patent-ineligible abstract ideas by our reviewing court in the
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decisions of In re Grams, 888 F.2d 835 (Fed. Cir. 1989), CyberSource Corp.
v. Retail Decisions, Inc., 654 F.3d 1366 (Fed. Cir. 2011), and SmartGene,
Inc. v. Advanced Biological Labs., SA, 555 F. App'x 950 (Fed. Cir. 2014).
Id. at 4. The Examiner also determines that claim 1 does not include
additional elements that are sufficient to amount to significantly more than
the judicial exception. Id. at 4-5.
In Alice Corp. Pty. Ltd. v. CLS Bankint'l, 134 S. Ct. 2347, 2355
(2014), the Supreme Court reiterated the following two-step analysis
(previously set forth in Mayo Collaborative Services v. Prometheus Labs.,
Inc., 566 U.S. 66, 82-84 (2012)) for distinguishing patents that claim patent-
ineligible laws of nature, natural phenomenon, and abstract ideas from those
that claim patent-eligible applications of those concepts:
First, we determine whether the claims at issue are directed to
one of those patent-ineligible concepts. If so, we then ask,
[ w ]hat else is there in the claims before us? ... We have
described step two of this analysis as a search for an "inventive
concept" --i.e., an element or combination of elements that is
"sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the ineligible concept
itself."
Alice, 134 S. Ct. at 2355.
The Supreme Court in Alice reiterated the framework set out in Mayo
for "distinguishing patents that claim ... abstract ideas from those that claim
patent-eligible applications of those concepts." Alice, 134 S. Ct. at 2355.
The first step in the analysis is to determine if the claim is directed toward a
patent-ineligible concept and, if so, the second step is to determine whether
there are additional elements that transform the nature of the claim into a
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patent-eligible application. Alice, 134 S. Ct. at 2355 (citing Mayo, 566 U.S.
at 77-80). The second step searches for an inventive concept that is
sufficient to ensure that the patent amounts to significantly more than a
patent on the patent-ineligible concept. Alice, 134 S. Ct. at 2355 (citing
Mayo, 566 U.S. at 71-73).
Appellants argue independent claim 1 is not a patent-ineligible
abstract idea because it enhances operation of computing systems by
allowing determination of whether they are exhibiting abnormal behavior
based explicitly on an addition or removal of a physical hardware
component to the computing system. App. Br. 13. Appellants assert that the
claim at issue is analogous to the claims in Enfzsh, LLC v. Microsoft Corp.,
822 F.3d 1327 (Fed. Cir. 2016), which were found to not be directed to an
abstract idea because the claims improved the way a computer stores and
retrieves data in memory. App. Br. 12-13.
Appellants additionally contend independent claim 1 is not a patent-
ineligible abstract idea because it addresses the technological problem
specifically arising in the realm of computing performance, i.e., whether
computing systems exhibit abnormal behavior. App. Br. 13; Reply Br. 4.
Appellants direct our attention to Examples 1 and 2 of the US PTO Guidance
on Subject Matter Eligibility2 as well as to McRO, Inc. v. Bandai Namco
Games America, Inc., 837 F.3d 1299 (Fed. Cir. 2016) in support of this
contention. App. Br. 13-14. Appellants further argue that, as with Enfzsh,
2 In view of Appellants' reliance on Examples 1 and 2, we determine that
Appellants are referring to the 2014 USPTO Guidance on Subject Matter
Eligibility.
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the claims of the subject application "are directed to a specific
implementation of a solution to a problem in the software arts" concerning
rapid changes in the infrastructure of cloud systems with components being
added and removed dynamically. Reply Br. 5 (citing Enfzsh, 822 F.3d at
1339).
We are unpersuaded by these arguments. As noted by the Examiner,
the subject matter of independent claim 1 enumerates a number of steps
involving the data gathering where a mean value of a metric and a sum of
squares of the metric of a sample at a previous time interval and of a sample
of the metric at a current time interval are calculated to diagnose an
abnormal condition in a system through comparison of the sample to an
outlier value based on the mean value of the metric and the sum of squares
of the metric at the previous time interval. Ans. 3.
We agree with the Examiner that Appellants have not adequately
explained why the subject matter of independent claim 1 is not an abstract
idea. Ans. 6-7. The Federal Circuit has held claims ineligible under § 101
when directed to a process of measuring parameters indicative of a condition
to determine, using an algorithm, whether the condition is abnormal. See In
re Grams, 888 F.2d at 836-37; see also Elec. Power Grp. LLC v. Alstom
S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016) (claims reciting the
combination of the abstract-idea processes of gathering and analyzing
information of a specified content and then displaying the results, without
any particular assertedly inventive technology for performing those
functions, are directed to an abstract idea); id. at 1354 (treating "analyzing
information by steps people go through in their minds, or by mathematical
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algorithms, without more, as essentially mental processes within the
abstract-idea category"); In re Meyer, 688 F.2d 789, 794 (CCPA 1982)
("[data-gathering] steps 'cannot make an otherwise nonstatutory claim
statutory"'), quoted in In re Grams, 888 F.2d at 840.
With respect to Appellants' argument that claim 1 addresses the
technological problem specifically arising in the realm of computing
performance (App. Br. 13; Reply Br. 4), a patent-ineligible abstract idea of a
mathematical formula is not transformed into a patent-eligible invention by
"limiting the use of an abstract idea 'to a particular technological
environment."' Alice, 134 S. Ct. at 2358, quoting Bilski v. Kappas, 561 U.S.
593, 610-11 (2010). While Appellants contend that claim 1 is analogous to
the claims in Enfish, we agree with the Examiner's determination that Enfish
is not controlling because claim 1 is not directed to data structures. Ans. 6.
Nor do Appellants adequately explain how the claim improves the way a
computer stores data in memory. Id. Further, as noted by the Examiner,
claim 1 does not "describe specific ways to improve the technological result
of detecting abnormal behavior in computing system or an improvement to
computer-related technology (i.e. computer functionality) as the Enfish
claims." Id. at 7.
The first threshold under Alice is met. We now tum to the second step
under Alice to consider if there is an inventive concept that is sufficient to
ensure that the patent amounts to significantly more than a patent on the
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patent-ineligible concept. Alice, 134 S. Ct. at 2355 (citing Mayo, 566 U.S. at
71-73).
Appellants argue that claim 1 recites additional features that are
sufficient to transform the claimed subject matter into a patent-eligible
application. App. Br. 15. According to Appellants, claim l may enhance
the functioning of computer systems (improve a technology/technical field)
by allowing determination of whether they are exhibiting abnormal
behavior. Id. at 16. Appellants also argue that claim 1 does not preempt the
general practice of diagnosing an abnormal condition and comparing
information. Reply Br. 9. Appellants additionally argue the Examiner is
inconsistent with respect to the determination that claim 1 is allowable over
prior art by showing improvement of the abnormal behavior detection while
maintaining that, under 35 U.S.C. § 101, claim 1 is not an improvement to
computer-related technology because the claim is well understood, routine,
and conventional. Final Act. 4, 7; Reply Br. 10.
We have considered Appellants' arguments but are unpersuaded by
them. Appellants do not direct us to "an element or combination of elements
that is 'sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept] itself."' Alice,
134 S. Ct. at 2355. That is, Appellants do not identify nor adequately
explain how the alleged additional features amount to significantly more
than a patent upon the ineligible concept itself. While Appellants argue that
the claim does not preempt the general practice of diagnosing an abnormal
condition and comparing information (Reply Br. 9), Appellants do not
explain why this is so. As determined by the Examiner, claim 1 does not
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add any meaningful limits on the use of a specific algorithm or a specialized
computer to improve the performance of a computer-implemented for
detecting abnormal behavior in a computing system. Ans. 4-5. Thus,
simply asserting that there are many meaningful and significant ways that
diagnosing an abnormal condition and comparing information can be
performed without being covered by the claims is insufficient to support a
finding of patent-eligible subject matter.
With respect to the inconsistency regarding the Examiner's
determinations over the prior art and the patent-ineligible subject matter, the
Specification itself suggests a generic computer can be used. Spec. ,-i 53
("general ... purpose microprocessors"). The manner with which and
the type of data the conventional "computing system" gathers, analyzes,
calculates and outputs may be unconventional. But a novel or
nonobvious way of analyzing data would not normally render patent-
eligible a claim directed to a generic computer functioning as it is
always expected to. This is so because a finding of novelty or
nonobviousness does not necessarily lead to the conclusion that subject
matter is patentable eligible. "Groundbreaking, innovative, or even
brilliant discovery does not by itself satisfy the § 101 inquiry." Ass 'n
for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2117
(2013). The question in step two of the Alice framework is not whether
an additional feature [i.e., the calculation] is novel but whether the
implementation of the abstract idea involves "more than performance of
'well-understood, routine, [and] conventional activities previously
known to the industry."' Content Extraction and Transmission LLC v.
Wells Fargo Bank, Nat. Ass 'n, 776 F.3d 1343, 1347-48 (Fed. Cir. 2014)
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(quoting Alice, 134 S. Ct. at 2359). This will depend on whether or not
the "computing system" is simply acting as a conduit for the data-
manipulating abstract idea, as novel/nonobvious as that might be. Cf In
re TL! Communications LLC Patent Litigation, 823 F.3d 607, 612 (Fed.
Cir. 2016).
Put differently, the telephone unit itself is merely a conduit
for the abstract idea of classifying an image and storing the
image based on its classification. Indeed, the specification
notes that it "is known" that "cellular telephones may be
utilized for image transmission," id. at col. 1 11. 31-34, and
existing telephone systems could transmit pictures, audio,
and motion pictures and also had "graphical annotation
capability," id. at col. 1 11. 52-59.
Here, the specification/claims support more strongly the view that
the "computing system" is a conduit. "Taking the claim elements
separately, the function performed by the computer at each step of the
process is '[p ]urely conventional."' Alice, 134 S. Ct. at 2359 (citing
Mayo, 566 U.S. at 79). Cf Alice, 134 S. Ct. at 2359 ("Considered 'as an
ordered combination,' the computer components of petitioner's method
'ad[d] nothing ... that is not already present when the steps are
considered separately.")
Thus, Appellants have not established error in the Examiner's
determination that the subject matter of representative claim 1 lacks
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additional elements that transforms the subject matter of the claim into a
patent-eligible application under the second step of Alice.
Dependent Claims 2, 4, 5, 7-10, and 12-21
The Examiner determines that dependent claims 2, 4, 5, 7-10, and 12-
21 are not directed to patent-eligible subject matter because the additional
steps/elements recite further well-understood, routine, conventional
activities and/or mathematical relationships/algorithms identified in its
respective parent claim. Ans. 12-13.
We note that the Examiner's analysis for the dependent claims in the
Answer is in response to Appellants' argument that such an analysis was
lacking in the Final Action. App. Br. 16-17. In the Reply Brief, Appellants
relied on the arguments presented for the independent claims to address the
Examiner's analysis with respect to the dependent claims by arguing all the
claims together. See generally Reply Br. That is, Appellants do not
specifically address the Examiner's reasons for determining that the
dependent claims are directed to patent-ineligible subject matter.
Therefore, Appellants have not established error in the Examiner's
determination that the subject matter of the dependent claims is an abstract
idea under the first step of Alice and that the dependent claims lack
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additional elements that transforms the subject matter of the claims into a
patent-eligible application under the second step of Alice.
Accordingly, we affirm the Examiner's rejection of claims 1, 2, and
4-21under35 U.S.C. § 101 for the reasons presented by the Examiner and
given above.
ORDER
The Examiner's rejection under 35 U.S.C. § 101 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a). See 37 C.F.R.
§ l.136(a)(l )(iv).
AFFIRMED
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