Ex Parte Khanduja et al

Patent Trial and Appeal Board

Jun 24, 2016

12548987 (P.T.A.B. Jun. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/548,987 08/27/2009 Vaibhav Khanduja
56436 7590 06/28/2016
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.
82251374 8114
EXAMINER
OLUDE AFOLABI, OLATOYOSI
ART UNIT PAPER NUMBER
2129
NOTIFICATION DATE DELIVERY MODE
06/28/2016 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
mkraft@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 V AIBHA V KHANDUJA, SRIJA Y JAY AP ALAN, and
STEFAN BERGSTEIN1
Appeal2015-001261
Application 12/548,987
Technology Center 2100
Before BRUCE R. WINSOR, AARON W. MOORE, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1--4, 7, 10, 13, 14, and 17-20. Claims 5, 6, 8, 9,
11, 12, 15, 16, and 192 are objected to but would be allowable if rewritten in
independent form. We have jurisdiction over this appeal under 35 U.S.C.
§ 6(b). We AFFIRM. 3
1 According to Appellants, the real party in interest is Hewlett-Packard
Development Company, LP. See Appeal Brief 2.
2 While the Examiner indicates claim 19 is objected to but would be
allowable if rewritten in independent form, we note that the Examiner also
rejects claim 19 under 35 U.S.C. § 101.
3 Throughout this Opinion, we refer to: ( 1) Appellants' Specification filed
Aug. 27, 2009 (Spec.); (2) the Final Office Action (Final Act.) mailed Jan. 2,
2014; (3) the Appeal Brief (Appeal Br.) filed May 2, 2014; (4) the
Appeal2015-001261
Application 12/548,987
BACKGROl.J1'-JD
According to Appellants, the application relates to a method of
processing network activity data that uses causal models, based on Bayesian
probability theories, to correlate network activity and identify symptom and
cause relationships between network events. Spec. i-f 8. The relationships in
the causal models may be assigned a probability representing the likelihood
of a causal relationship between the symptom event and the cause event,
generated at least in part based on Bayesian statistics. Id. Claim 1 is
reproduced below with disputed limitation emphasized:
1. A method of processing network activity data,
compnsmg:
receiving network activity data;
generating an event based on the network activity data;
generating a probability based at least in part on
Bayesian statistics, the probability corresponding to a
likelihood that the event caused or was caused by another
e-vent; and
generating an event message corresponding to the event
based on the probability.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal:
Nodelman et al. US 2005/0021485 Al
(hereinafter "N odelman")
Galitsky et al. (hereinafter US 2009/0089252 Al
"Galitsky")
Jan.27,2005
Apr. 2, 2009
Examiner's Answer (Ans.) mailed August 25, 2014; and (5) the Reply Brief
(Reply Br.) mailed October 21, 2014.
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Application 12/548,987
REJECTIONS
Claims 18-20 stand rejected under 35 U.S.C. § 101 as being directed
to non-statutory subject matter. Final Act. 2.
Claims 1--4, 7, 10, 13, 14, 17, 18, and 20 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Nodelman and Galitsky. Final
Act. 3-15.
Our review in this appeal is limited only to the above rejections and
issues raised by the Appellants. We have not considered other possible
issues that have not been raised by Appellants and which are, therefore, not
before us. See 37 C.F.R. § 41.37(c)(l)(iv) (2013).
ISSUES
1. Has the Examiner erred in concluding the invention, as recited in
claim 18, is directed to non-statutory subject matter?
2. Did the Examiner err in finding the combination ofNodelman and
Galitsky teaches or suggests "generating a probability based at least in part
on Bayesian statistics, the probability corresponding to a likelihood that the
event caused or was caused by another event," as recited in claim 1?
DISCUSSION
35 U.S.C. § 101: Claims 18-20
The Examiner rejects claims 18-20 under 35 U.S.C. § 101 as directed
to non-statutory subject matter because the broadest reasonable
interpretation of the claims in view of Appellants' Specification "would
include signals and/or carrier waves and therefore these claims are
considered patent ineligible." Final Act. 2; Ans. 3.
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We agree with the Examiner's conclusion. Claim 18 recites "[a]
tangible, computer-readable medium, comprising code." Appeal Br. 21
(Claims Appendix). We first note that the recited "tangible, computer-
readable medium" is not claimed as non-transitory. Id. Second, limiting the
computer-readable medium as tangible does not exclude a signal per se,
because a signal can be physical or tangible while still being transitory and
therefore non-statutory subject matter. See In re Nuijten, 500 F.3d 1346,
1353-57 (Fed. Cir. 2007) (tangible but transitory embodiments are not
directed to statutory subject matter). Third, the Specification does not
specifically define "tangible, computer-readable medium" to exclude signal
propagation medium or transitory medium. See Spec. i-f 27.
Appellants contend the Specification describes only a list of tangible,
non-transitory media and, accordingly, "a broadest reasonable interpretation
of this list cannot be extended to include transitory media such as signals
and/or carrier waves." Appeal Br. 8 (citing Spec. i-f 27).
We are not persuaded by Appellants' argument. Appellants'
Specification states "[t]he tangible, machine-readable medium 300 can
comprise RAM, a hard disk drive, an array of hard disk drives, an optical
drive, an array of optical drives, a non-volatile memory, a USB drive, a
DVD, a CD, and the like." Spec. i-f 27 (emphasis added). Thus, Appellants
have not narrowly defined the computer readable storage medium, but,
instead, have described the term in an open-ended manner.
Accordingly, we find that the broadest reasonable interpretation of the
term "tangible, computer-readable medium," in view of Appellants'
Specification, includes transitory propagating signals. See Ex parte
Mewherter, 107 USPQ2d 1857, 1862 (PTAB 2013) (precedential) (holding
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Application 12/548,987
that where a specification does not limit the term "machine readable storage
medium" expressly to exclude signals, carrier waves, and other transitory
media, the term encompasses transitory propagating signals).
Appellants are not precluded from amending these claims to
overcome this rejection. Guidance on this point is provided in U.S. Patent &
Trademark Office, Subject Matter Eligibility of Computer Readable Media,
1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010) ("A claim drawn to such a
computer readable medium that covers both transitory and non-transitory
embodiments may be amended to narrow the claim to cover only statutory
embodiments to avoid a rejection under 35 U.S.C. § 101 by adding the
limitation 'non-transitory' to the claim."). See also U.S. Patent &
Trademark Office, Evaluating Subject Matter Eligibility Under 35 USC
§ 101 (August 2012 Update) (pp. 11-14), available at
http://www.uspto.gov/patents/law/exam/101_training_aug2012.pdf (noting
that while the recitation "non-transitory" is a viable option for overcoming
the presumption that those media encompass signals or carrier waves,
merely indicating that such media are "physical" or tangible" will not
overcome such presumption).
Accordingly, because we are not persuaded the invention as recited is
limited to statutory subject matter, we sustain the rejection of claims 18-20
under 35 U.S.C. § 101.
35 U.S.C. § 103: Claims 1--4, 7, 10, 13, 14, 17, 18, and 20
After review of Appellants' arguments and the Examiner's findings
and reasoning, we determine that Appellants have not identified error in the
Examiner's rejection of claim 1. Accordingly, we affirm the rejection for
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Application 12/548,987
reasons set forth by the Examiner in the Final Office Action and the Answer.
See Final Act. 3-5; Ans. 4--9. We add the following for emphasis.
Appellants assert their invention is not obvious over Nodelman and
Galitsky (Appeal Br. 9-13). Specifically, Appellants contend "to the extent
that the probabilistic inferences ofNodelman are based on events, such
probabilistic inferences do not determine causation between events."
Appeal Br. 13 (citing Nodelman i-fi-f 12 and 13).
We disagree, noting the Examiner correctly finds that Nodelman's
discussion of using "inferences," obtained from continuous time Bayesian
networks, to construct "new events or actions from a set of observed events"
"teaches or suggests generating a ... probability corresponding to a
likelihood that the event caused or was caused by another event." Final Act.
3--4; Ans. 4--6. Illustrating that the Examiner correctly applied the cited
passages of N odelman in discussing the use of learning models such as the
Bayesian learning models, Nodelman indicates that "rather than a more
thorough probabilistic approach, deterministic assumptions can also be
employed (e.g., no desktop activity for X amount of time may imply by rule
that user is not at work)." Nodelman i141 (emphasis added). Thus, one of
ordinary skill in the art would have understood Nodelman's teachings to be
directed at determining causal relationships between a caused event (i.e.,
desktop inactivity) and a causing event (i.e., user is not at work), whether by
a probabilistic approach or deterministic assumptions. Accordingly, the
Examiner correctly finds that Nodelman teaches using Bayesian statistics to
determine that an event caused or was caused by another event (Ans. 4--6)
such as no desktop activity being determined as caused by the user not being
at work. Appellants further contend the "Examiner appears to assert that the
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Application 12/548,987
Bayesian statistics inherently discloses determining a causal relationship
between events." Appeal Br. 13. The Examiner clarifies, however, that she
does not rely on a theory of inherency. Ans. 4. We agree that the Examiner
need not rely on inherency to establish that Nodelman teaches or suggests
determining a causal relationship between events, as discussed above with
respect to Nodelman's teaching of "deterministic assumptions" in lieu of a
probabilistic approach. See, e.g, Nodelman i-f 41.
Appellants contend that N odelman fails to teach "receiving network
activity data." Appeal Br. 12. Specifically, Appellants state "to the extent
that Nodelman discloses collecting activity data, such activity data are
merely related to the activity of users interacting with various devices." Id.
We disagree, noting the Examiner correctly finds data-acquisition
component 210 detects, inter alia, "computer usage activity 214" on
multiple computers, components, or devices that a user is likely to employ.
Ans. 5 (citing Nodelman i-f 52). Nodelman indicates that at least one of the
computers or components may be networked. Nodelman i-f 46. Nodelman
further discusses that the continuous time Bayesian networks may use the
acquired usage activity to predict system "resource requirements."
Nodelman i-f 28. Accordingly, we agree with the Examiner's finding that
Nodelman teaches or suggests "receiving network activity data," as claimed.
Final Act. 3.
Appellants contend that Nodelman fails to teach "generating an event
based on the network activity data," as defined by the Specification, because
Nodelman instead discusses "user activity and events." Appeal Br. 11-12.
Appellants' arguments regarding Nodelman are not persuasive because the
Examiner relies upon Galitsky to teach or suggest the disputed claim
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elements and thus the arguments are unresponsive to the rejection. Final
Act. 4.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 1. We also sustain the Examiner's 35 U.S.C. § 103(a) rejection of
claims 10 and 18, which Appellants argue are patentable for similarly
unpersuasive reasons. App. Br. 16-17.
Appellants do not make any other substantive argument regarding the
rejection of dependent claims 2--4, 7, 13, 14, 17, and 20. Id. Therefore, we
likewise sustain the rejections of these dependent claims under 35 U.S.C.
§ 103(a).
DECISION
The Examiner's rejection of claims 18-20 under 35 U.S.C.
§ 101 as being directed to non-statutory subject matter is affirmed.
TheExaminer'srejectionofclaims 1--4, 7, 10, 13, 14, 17, 18, and20
under 35 U.S.C. § 103(a) as being unpatentable over Nodelman and Galitsky
is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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