Fei Gao et al.

Patent Trials and Appeals Board

Jun 30, 2020

2018006843 (P.T.A.B. Jun. 30, 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.
14/914,088 02/24/2016 FEI GAO 90160552 7182
146568 7590 06/30/2020
MICRO FOCUS LLC
500 Westover Drive
#12603
Sanford, NC 27330
EXAMINER
CHAMPAKESAN, BADRI NARAYANAN
ART UNIT PAPER NUMBER
2438
NOTIFICATION DATE DELIVERY MODE
06/30/2020 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):
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 FEI GAO, ZHIPENG ZHAO, and ANURAG SINGLA
____________

Appeal 2018-006843
Application 14/914,088
Technology Center 2400
____________

Before KEVIN F. TURNER, JOHN P. PINKERTON, and
CARL L. SILVERMAN, Administrative Patent Judges.

TURNER, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134(a) from the Final Office Action
dated July 12, 2017 (“Final Act.”), rejecting claims 1, 3–8, 12, and 14–23. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies EntIT Software LLC, the assignee of this application,
the real party in interest. (Appeal Brief 1) (hereinafter “Appeal Br.”).
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THE CLAIMED SUBJECT MATTER
The claims are directed to a system, a method, and a computer readable
medium to detect a system anomaly using pattern discovery. See Specification
(hereinafter “Spec.”) ¶¶ 9–14. Claims 1, 7, and 12 are independent; claims 3–6, 8,
and 14–23 are dependent. Claim 1, reproduced below, is representative of the
claimed subject matter:
1. A system comprising:
a plurality of nodes each comprising a processor and a
memory, the plurality of nodes comprising a first node, a
second node, and a third node,
the first node to:
receive a plurality of itemset and transaction
identifier pairs from other nodes of the plurality of nodes;
in response to determining that a first itemset of
an itemset and transaction identifier pair of the plurality of
itemset and transaction identifier pairs has an itemset size that
is not larger than a threshold itemset size, generate a new
candidate itemset comprising the first itemset and an itemset
of a frequent itemset table that share a given transaction
identifier, the frequent itemset table including itemsets
comprising items that are associated with transaction sets
larger than a threshold transaction size;
the second node to merge the given transaction
identifier with a transaction set to produce a resulting
transaction set, and to determine that the new candidate
itemset is a frequent itemset in response to determining that
the resulting transaction set has a size larger than the threshold
transaction size; and
the third node to identify a discovered pattern in response
to the new candidate itemset having a size larger than the
threshold itemset size and the resulting transaction set having
the size larger than the threshold transaction size,
the system to identify an anomaly in the system based on
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the discovered pattern.
Appeal Br. i–iv (Claims Appendix) (emphasis added).

REJECTIONS ON APPEAL2
Claims 1, 3–8, 12, and 14–23 are rejected under 35 U.S.C. § 101 because the
claimed invention is directed to a judicial exception (i.e., a law of nature, a natural
phenomenon, or an abstract idea) without significantly more.
Claims 1, 3–8, 12, 14–17, 19, 22, and 23 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Mori (US 2008/0126347 Al, published May
29, 2008) (hereinafter Mori”), in view of Manganaris et al. (US 2002/0082886 A1,
published June 27, 2002) (hereinafter “Manganaris”).
Claim 18 is rejected under 35 U.S.C. § 103(a) as being unpatentable over
Mori and Manganaris, and further in view Agarwal (US 6,389,416 B1, issued May
14, 2002) (hereinafter “Agarwal”).
Claims 20 and 21 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Mori and Manganaris, and further in view of Himberger et al.
(US 2005/0248457 A1, published Nov. 10, 2005) (hereinafter “Himberger”).

ANALYSIS
I. Rejection of claims 1, 3–8, 12, and 14–23 under § 101
We have reviewed the Examiner’s rejection in light of Appellant’s
arguments. For the reasons set forth below, we affirm the Examiner’s subject
matter eligibility rejection.

2 The Examiner withdrew the rejections under 35 U.S.C. § 112. See Answer 3–4.
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A. Principles of Law
Patent eligibility is assessed under 35 U.S.C. § 101, which states that an
invention is patent eligible if it claims a new and useful process, machine,
manufacture, or composition of matter. 35 U.S.C. § 101. The Supreme Court has
held that this statutory provision contains an important implicit exception: laws of
nature, natural phenomena, and abstract ideas are not patentable. E.g., Alice Corp.
v. CLS Bank Int’l, 573 U.S. 208, 215–17 (2014). But claiming the practical
application of these concepts may be deserving of patent protection. Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 70–73 (2012). In
Alice, the Supreme Court reaffirmed the framework set forth previously in Mayo
“for distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those concepts.”
Alice, 573 U.S. at 217.
The first step in the analysis is to “determine whether the claims at issue are
directed to one of those patent-ineligible concepts.” Id. If the claims are directed
to a patent-ineligible concept, the second step in the analysis is to consider the
elements of the claims “individually and ‘as an ordered combination’” to determine
whether there are additional elements that ‘“transform the nature of the claim’ into
a patent-eligible application.” Id. (quoting Mayo, 566 U.S. at 79, 78). In other
words, the second step is to “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.’”
Id. at 217–18 (alteration in original) (quoting Mayo, 566 U.S. at 72–73).
In 2019, the USPTO published revised guidance on the application of § 101.
See USPTO's January 7, 2019 Memorandum, 2019 Revised Patent Subject Matter
Eligibility Guidance (“Guidance”). “All USPTO personnel are, as a matter of
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internal agency management, expected to follow the guidance.” Guidance, 84 Fed.
Reg. 50, 51 (Jan. 7, 2019); see also October 2019 Update at 1 (October 2019
Update: Subject Matter Eligibility).3 Under that guidance, we look to whether the
claim recites:
(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 is 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 Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019).
B. Discussion
In the Final Action, the Examiner determined that claims 1, 3–8, 12, and 14–
23 are not patent-eligible subject matter because, under the broadest reasonable
interpretation, the claims do not amount to anything more than an abstract idea.
See Final Action 6–12 (hereinafter “Final Act.”); Answer 12–25 (hereinafter
“Ans.”). The Examiner explained that the claims, viewed individually and as a
whole, recite “collecting data, analyzing them and manipulating further.” See

3 USPTO, October 2019 Update: Subject Matter Eligibility (the “October 2019
Update”) (available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf).
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Final Act. 8–10 (citing cases that found similar ideas abstract), 11 (“an abstract
idea (collecting data from server(s))”); Ans. 13, 14 (“perform tasks relating to
pattern discovery using itemsets and transaction identifiers and transaction sets, in
combination with identifying an anomaly in a system based on the discovered
pattern”). The Examiner categorized this abstract idea as a certain method of
organizing human behavior and “an idea of itself” because it is similar to
organizing, manipulating and comparing intangible data. See Final Act. 8–10;
Ans. 13, 14, 25. The Examiner further explained that the claims recite a
mathematical concept because the limitations organize and compare data using
mathematical correlations. See Final Act. 9–10; Ans. 21, 25. Similarly, the
Examiner explained that the claims recite a mental process since the steps can be
performed mentally and with pen and paper. See Final Act. 8–10, 12. The
remaining elements were found by the Examiner to be well-understood, routine,
and conventional functions of generic computers and did not impose meaningful
limits on the claimed invention, such as improving technology or a technical field.
Final Act. 11–12; Ans. 13–25.
Appellant argues that the Examiner erred in determining that the claims are
directed to patent-ineligible subject matter. Appeal Br. 10–20; Reply Brief 1–22
(hereinafter “Reply Br.”). Specifically, Appellant asserts that the claims are
directed to anomaly identification using a plurality of nodes performing tasks
relating to pattern discovery of itemsets, transaction identifiers, and transaction
sets. Appeal Br. 12–17; Reply Br. 4–6. Appellant argues that the Examiner did
not consider that the claims relate to improving the relevant technology or
computer functionality. Id. Similarly, Appellant argues that the claims are
directed to solving a problem specifically arising in computer networks, “such as a
worm, virus, or other anomaly,” which amount to “significantly more.” Appeal Br.
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17–20; Reply Br. 4–5, 19–21. Appellant asserts that the Examiner categorized the
additional elements as “well-understood, routine, and conventional functions of
generic computers” without any support. Reply Br. 21–22.
1. Step 2A, Prong One
Accordingly, under the first step of Alice, the claims must be analyzed to
determine if the claims are directed to a judicial exception. Taking claim 1 to be
representative,4 claim 1 recites the following limitations (with paragraph letters and
tabbing added):
(a) receive a plurality of itemset and transaction identifier pairs,
(b) in response to determining that a first itemset of an itemset and
transaction identifier pair of the plurality of itemset and transaction
identifier pairs has an itemset size that is not larger than a threshold
itemset size, generate a new candidate itemset comprising the first
itemset and an itemset of a frequent itemset table that share a given
transaction identifier, the frequent itemset table including itemsets
comprising items that are associated with transaction sets larger
than a threshold transaction size,
(c) merge the given transaction identifier with a transaction set to
produce a resulting transaction set, and determine that the new
candidate itemset is a frequent itemset in response to determining
that the resulting transaction set has a size larger than the threshold
transaction size,
(d) identify a discovered pattern in response to the new candidate
itemset having a size larger than the threshold itemset size and the
resulting transaction set having the size larger than the threshold
transaction size, and
(e) identify an anomaly in the system based on the discovered pattern.
Appeal Br. i (Claims Appendix).

4 Appellant groups claims 1, 3–8, 12, and 14–23, all of which recite limitations
commensurate in scope, together for argument, and we choose claim 1 as
representative. 37 C.F.R. § 41.37(c)(iv).
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We agree with the Examiner that these limitations, under their broadest
reasonable interpretation, recite the mental process and mathematical concept of
“collecting, analyzing, and manipulating data.” See Final Act. 8–11; Ans. 13–14.
The claim limitations recite observations and evaluations that can be performed in
the human mind. See Guidance, 84 Fed. Reg. 50, 52 (Jan. 7, 2019). Furthermore,
the limitations individually and as an ordered combination, recite a mathematical
concept in that they recite mathematical relationships in order to analyze and
further manipulate data. See id. Thus, claims 1, 3–8, 12, and 14–23 recite an
abstract idea.
2. Step 2A, Prong Two
Having determined that the claims recite a judicial exception, our analysis
under the Guidance turns now to determining whether there are “additional
elements that integrate the judicial exception into a practical application.” See
MPEP § 2106.05(a)–(c), (e)–(h). For example, limitations that are indicative of
“integration into a practical application” include:
1) Improvements to the functioning of a computer, or to any other
technology or technical field - see MPEP § 2106.05(a);
2) Applying the judicial exception with, or by use of, a particular
machine - see MPEP § 2106.05(b);
3) Effecting a transformation or reduction of a particular article to a
different state or thing - see MPEP § 2106.05(c); and
4) Applying or using the judicial exception in some other meaningful
way beyond generally linking the use of the judicial exception to a
particular technological environment, such that the claim as a
whole is more than a drafting effort designed to monopolize the
exception - see MPEP § 2106.05(e).
In contrast, limitations that are not indicative of “integration into a practical
application” include:
1) Adding the words “apply it” (or an equivalent) with the judicial
exception, or mere instructions to implement an abstract idea on a
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computer, or merely uses a computer as a tool to perform an
abstract idea - see MPEP § 2106.05(f);
2) Adding insignificant extra-solution activity to the judicial exception
- see MPEP § 2106.05(g); and
3) Generally linking the use of the judicial exception to a particular
technological environment or field of use - see MPEP §
2106.05(h).
See Guidance, 84 Fed. Reg. at 54–55 (“Prong Two”).
As explained by the Examiner, the additional elements of claim 1 recite
various computer-related limitations, including “a system,” and “a plurality of
nodes each comprising a processor and a memory.” See Final Act. 11–12; Ans.
15–16. Independent claims 7 and 12 recite further computer-related limitations
such as “a network,” and “a non-transitory machine-readable medium storing
instructions.” See id. Although these computer-related limitations are recited, we
agree with the Examiner that these limitations are no more than generic computing
elements performing generic computing functions. See e.g., Spec. ¶¶ 26, 27, 46–
47, 58–62 (“the nodes 102, 104, 106, 108, 110 are computing devices, such as
servers, client computers, desktop computers, mobile computers, etc.”). A general
purpose computer that merely executes the judicial exception is not a particular
machine. Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716–17 (Fed. Cir. 2014),
cited in MPEP § 2106.05(b). It is true that the invention’s ability to run on a
general-purpose computer does not necessarily “doom[] the claims” for purposes
of subject matter eligibility. Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335
(Fed. Cir. 2016)). However, Appellant has not identified any disclosure in the
Specification of any inventive techniques or specialized computer components to
perform the recited functions of the claims. As such, we do not find the computer-
related limitations sufficient to integrate the judicial exception into a practical
application.
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Similarly, the claims are merely using the computer-related limitations as a
tool to execute the abstract idea. See Affinity Labs of Texas, LLC v. DirecTV,
LLC, 838 F.3d 1253, 1262 (Fed. Cir. 2016); TLI Communications LLC v. AV Auto,
LLC, 823 F.3d 607, 613 (Fed. Cir. 2016), cited in MPEP § 2106.05(f). While the
additional computer-related limitations may perform the pattern discovery and
anomaly detection faster than a human could, using a computer to achieve a
solution more quickly may not be sufficient to show an improvement to computer
technology. See Versata Dev. Grp. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed.
Cir. 2015); see also MPEP § 2106.05(a)(II) (instructing examiners that a
“commonplace business method being applied on a general purpose computer”
may not be sufficient to show an improvement). Here, representative claim 1
broadly detects an anomaly without any particular technical improvement to how
the processor carries out these operations. In this way, the recited computer-
related limitations are merely used to perform calculations. For all these reasons,
the claims do not use the computer-related limitations in a way that indicates that
the judicial exception has been integrated into a practical application. Therefore,
claims 1, 3–8, 12, and 14–23 are “directed to” an abstract idea.
3. Step 2B
If the claims are “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).
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“[M]erely requir[ing] generic computer implementation[] fail[s] to transform that
abstract idea into a patent-eligible invention.” Id.
To determine whether a claim provides an inventive concept, the additional
elements are considered individually and in combination to determine whether they
(1) add a specific limitation beyond the judicial exception that is not “well-
understood, routine, conventional” in the field or (2) simply append well-
understood, routine, conventional activities previously known to the industry,
specified at a high level of generality, to the judicial exception. Guidance, 84 Fed.
Reg. at 56.
We agree with the Examiner that there is nothing in the subject matter of the
claims transforming the claimed abstract idea into an inventive concept. The
Examiner’s determination that the additional elements of claim 1 are well-
understood, routine, and conventional is amply supported by, and fully consistent
with, the Specification, which describes Appellant’s invention in a manner that
requires no more than a general-purpose computer with generic computing
elements. See Spec. ¶¶ 26, 27, 46–47, 58–62 (“the nodes 102, 104, 106, 108, 110
are computing devices, such as servers, client computers, desktop computers,
mobile computers, etc.”). Although Appellant asserts that certain limitations have
not been shown as well-understood, routine, and conventional, Appellant does not
explain specifically why these limitations are not well-understood, routine, and
conventional, nor does Appellant identify any passages from the Specification that
support its assertions. Instead, all of the claim limitations are directed to well-
understood, routine, conventional activities as explained above. Therefore, the
additional elements in the claims do not amount to significantly more than the
judicial exception.
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In summary, because we determine that claims 1, 3–8, 12, and 14–23 are
directed to an abstract idea and do not contain an inventive concept, we affirm the
Examiner’s rejection under 35 U.S.C. § 101.

II. Rejection of Claims 1, 3–8, 12, and 14–23 Under 35 U.S.C. § 103(a)
We have reviewed the Examiner’s rejection in light of Appellant’s
arguments. The dispositive issue raised in Appellant’s Briefs is whether the
combination of Mori and Manganaris teaches or suggests the limitations of
independent claims 1, 7, and 12.5 For the reasons set forth below, we reverse the
Examiner’s rejections under 35 U.S.C. § 103(a).
The Examiner rejected the independent claims using a combination of Mori
and Manganaris. Final Act. 13–16. The Examiner relied on Mori to teach
“generating a new candidate itemset comprising the first itemset and an itemset of
a frequent itemset table that share a given transaction identifier, the frequent
itemset table including itemsets comprising items that are associated with
transaction sets larger than a threshold transaction size.” Final Act. 13–14 (citing
Mori ¶ 60). However, the Examiner relied on Manganaris to teach the remaining
claim limitation that determines “that a first itemset of an itemset and transaction
identifier pair of the plurality of itemset and transaction identifier pairs has an
itemset size that is not larger than a threshold itemset size.” Final Act. 15 (citing
Manganaris ¶¶ 29, 56). The Examiner explained that Manganaris meets the claim
limitation because Manganaris determines whether the items “occur with [a]

5 Appellant groups claims 1, 7, and 12, all of which recite limitations
commensurate in scope, together for argument, and we choose claim 1 as
representative. 37 C.F.R. § 41.37(c)(iv).

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frequency lower than the minimum support threshold in any context.” Final Act.
15 (citing Manganaris ¶ 56); Ans. 7. The Examiner asserts that “Manganaris
clearly teaches that Alarms (i.e., items) and sets of alarms (i.e., itemsets) that tend
to occur often (i.e., more frequently) within bursts (i.e., transactions) are
considered ‘frequent itemsets’” and that “itemsets with frequency lower than a
minimum support threshold [sic] are counted as frequent itemsets if there are more
items occurring within the transactions.” Ans. 5–7 (citing Manganaris ¶¶ 29, 53,
58).
Appellant argues that Manganaris does not determine that the first itemset
has “an itemset size that is not larger than a threshold itemset size” as claimed in
independent claims 1, 7, and 12. Appeal Br. 21–23; Reply Br. 23–27. Appellant
argues that Manganaris makes a determination based on frequency, not itemset
size. Appeal Br. 22–23; Reply Br. 24–27. Appellant contends that the Examiner
erred in interpreting “itemset size” as a size, count, amount, or rate and in applying
that construction to find Manganaris met the claim limitation. See Reply Br. 23–26
(citing Ans. 5). Appellant further contends that the Examiner erred because the
asserted references do not generate a new candidate itemset in response to first
determining that the “itemset size is not larger than the threshold itemset size.”
Appeal Br. 21–23; Reply Br. 28.
We agree that the Examiner erred. First, as per the Specification, we find
that “itemset size” means the number of items in an itemset. See, e.g., ¶¶ 17, 20,
38 (“If it is a new single item set or the item set size has not reached a threshold
(e.g., max item size) of the transaction, the transaction builder module 156 will
attempt to build all possible new candidate item sets with size = [incoming item
set].size+1 and elements as incoming item set elements plus one of the frequent
single item (not in the incoming item set) for transaction ID.”). Reading the claim
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language in light of the Specification, Manganaris does not teach a determination
based on itemset size. Instead, the cited paragraphs of Manganaris make a
determination regarding the frequency of an item compared to a frequency
threshold. See Manganaris ¶¶ 26, 56. While the remainder of the claim recites a
frequency threshold, the Examiner determined Mori met that part of the claim. See
Final Act. 13–14. Thus, we find that the asserted references do not teach or
suggest determining that the first itemset has “an itemset size that is not larger than
a threshold itemset size.”
On the record before us, we find the preponderance of the evidence does not
support the Examiner’s finding that the combined teachings of Mori and
Manganaris teach or suggest the disputed limitation of independent claims 1, 7,
and 12. We agree that the Examiner erred because the combined teachings and
suggestions of Mori and Manganaris would not have rendered the subject matter of
claims 1, 7, and 12 obvious under 35 U.S.C. § 103(a). Thus, we reverse the
Examiner’s rejection of claims 1, 7, and 12. For the same reasons, we reverse the
Examiner’s rejections of dependent claims 3–8, and 14–23, which fall together
with claims 1, 7, and 12. 37 C.F.R. § 41.37(c)(1)(iv).

DECISION
The Examiner’s decision to reject claims 1, 3–8, 12, 14–23 is affirmed.

In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
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No period for taking any subsequent action in connection with this appeal
may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37 C.F.R. § 41.50(f).
AFFIRMED
37 C.F.R. § 41.50(b)

1, 3–8, 12, 14–
23
101 Patent-eligible
subject matter
1, 3–8,
12, 14–23

1, 3–8, 12, 14–
17, 19, 22, 23
103(a) Mori, Manganaris 1, 3–8, 12,
14–17, 19,
22, 23
18 103(a) Mori, Manganaris,
Agarwal
18
20, 21 103(a) Mori, Manganaris,
Himberger
20, 21
Overall
Outcome
1, 3–8,
12, 14–23