Microsoft Technology Licensing LLC

Patent Trials and Appeals Board

Jul 2, 2020

2019001994 (P.T.A.B. Jul. 2, 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.
14/747,750 06/23/2015 Thomas Hejlsberg 357597.01 9977
69316 7590 07/02/2020
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
EXAMINER
YUN, CARINA
ART UNIT PAPER NUMBER
2194
NOTIFICATION DATE DELIVERY MODE
07/02/2020 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):
chriochs@microsoft.com
usdocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS HEJLSBERG, ESBEN NYHUUS KRISTOFFERSEN,
STEFFEN BALSLEV, JENS MØLLER-PEDERSEN, JESPER FALKEBO,
RIKKE PERNILLE HAGEN LASSEN, and MARC HANSEN
Appeal 2019-001994
Application 14/747,750
Technology Center 2100
Before CAROLYN D. THOMAS, MICHAEL J. STRAUSS, and
JEREMY J. CURCURI, Administrative Patent Judges.
CURCURI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. 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(a). Appellant identifies the real party in interest as Microsoft
Technology Licensing, LLC. Appeal Brief 3 “Br.”.
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Application 14/747,750
2
CLAIMED SUBJECT MATTER
The claims are directed to “integration and synchronization using a
virtual data provider.” Title. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A computing system, comprising:
a processor;
memory coupled to the processor and containing
instructions that, when executed by the processor, provide a
computing element that makes a data access request, an
application programing interface (API), a native data provider,
and an external system data provider;
the API receiving the data access request from the
computing element and engaging one of the native data
provider and the external system provider to fulfill the data
access request;
wherein the native data provider provides native data to
the computing element, and wherein the computing element
performs a logical operation on the native data; and
wherein the external system data provider:
converts a data access call in a first format to an
external call in a second format, the external call
requesting external data from an external computing
system that is external to the computing system;
receives the external data from the external
computing system;
uses a processor to transform the external data
from a first form to a native form that is a same form as
the native data provided by the native data provider; and
provides the external data, transformed to the
native form, to the computing element through the API.
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REJECTIONS
Claims 1–20 stand rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more. Final Act. 3.
OPINION
Claims 1, 10, and 16 are the independent claims. The Examiner
determines the following:
Claim(s) 1, 10, and 16 are directed to an abstract idea of a data
access request received through an application programming
interface (API) on the first computing system and is transformed
into a call supported by the external computing system.
The examiner asserts that this concept of a data access
request received through an application programming interface
(API) on the first computing system and is transformed into a call
supported by the external computing system is an abstract idea.
The steps of collecting are the exposing, providing, and receiving
steps. The steps of manipulating information is the converting,
and transforming step. The first set of data is the external data,
and second set of data (transformed) is the native form. The
claim(s) does/do not include additional elements that are
sufficient to amount to significantly more than the judicial
exception. The court has identified an abstract idea of organizing
information through mathematical correlations, see Digitech
Image Tech., LLC v. Electronics for Imaging, Inc.[, 758 F.3d
1344 (Fed. Cir. 2014)] (U.S. Patent 6,128,415), wherein the court
has reduced the claim to its most basic concept which was
characterized as generating first data and second data using
mathematical techniques and combining the first and second data
into a device profile. This basic concept of gathering and
manipulating information to generate additional information was
found to be an abstract idea similar to Benson’s basic concept of
manipulating information using mathematical relationships.
Final Act. 3 (formatting altered); see also Final Act. 3 (further discussing
significantly more, and discussing the dependent claims), Ans. 5–8.
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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 U.S. 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. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part 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, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
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In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.” Diehr,
450 U.S. at 187; see also id. at 191 (“We view respondents’ 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 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. (citation omitted)
(citing Benson and Flook); see, e.g., 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.”).
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. (alterations in original) (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.
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
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Application 14/747,750
6
(“2019 Revised Guidance”).2 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51; see
also October 2019 Update at 1.
Under the 2019 Revised Guidance and the October 2019 Update, we
first 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) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).3
2019 Revised Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the claim:

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 (the “October
2019 Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
3 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. 54–55.
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(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.
2019 Revised Guidance, 84 Fed. Reg. at 52–56.
Are the claims patent-eligible?
Step 1
Claims 1 and 16 recite a system, which falls within the “machine”
category of 35 U.S.C. § 101. Claim 10 recites a method, which falls within
the “process” category of 35 U.S.C. § 101. Thus, we must determine
whether the claim recites a judicial exception and fails to integrate the
exception into a practical application. See 2019 Revised Guidance, 84 Fed.
Reg. at 54–55. If both elements are satisfied, the claim is directed to a
judicial exception under the first step of the Alice/Mayo test. See id.
Step 2A, Prong One
Independent claim 1 (emphasis added) recites the following steps:
[i] the API receiving the data access request from the
computing element and engaging one of the native data
provider and the external system provider to fulfill the data
access request;
[ii] wherein the native data provider provides native data
to the computing element, and wherein the computing element
performs a logical operation on the native data; and
wherein the external system data provider:
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Application 14/747,750
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[iii] converts a data access call in a first format to
an external call in a second format, the external call
requesting external data from an external computing
system that is external to the computing system;
[iv] receives the external data from the external
computing system;
[v] uses a processor to transform the external data
from a first form to a native form that is a same form as
the native data provided by the native data provider; and
[vi] provides the external data, transformed to the
native form, to the computing element through the API.
Step [i] recites collecting data (“receiving the data access request,”
“engaging one”), which is a combination of “observation, evaluation,
judgment, opinion.” 2019 Revised Guidance, 84 Fed. Reg. at 52. Thus, step
[i] recites the abstract concept of “[m]ental processes.” Id.
Step [ii] recites collecting data (“provides native data”) and analyzing
data (“performs a logic operation”), which also are a combination of
“observation, evaluation, judgment, opinion.” 2019 Revised Guidance, 84
Fed. Reg. at 52. Thus, step [ii] also recites the abstract concept of “[m]ental
processes.” Id.
Steps [iii]–[vi] further recite analyzing data (“converts a data access
call”), collecting data (“receives the external data”), analyzing data
(“transform the external data”), displaying results (“provides the external
data”), which also are a combination of “observation, evaluation, judgment,
opinion.” 2019 Revised Guidance, 84 Fed. Reg. at 52. Thus, steps [iii]–[vi]
also recite the abstract concept of “[m]ental processes.” Id.
Thus, the overall process provided by steps [i]–[vi] describes
collecting data (“receiving the data access request,” “engaging one,”
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“provides native data,” “receives the external data”), analyzing data
(“performs a logic operation,” “converts a data access call,” “transform the
external data”), and displaying results (“provides the external data”), which
are a combination of “observation, evaluation, judgment, opinion.” 2019
Revised Guidance, 84 Fed. Reg. at 52. Thus, the overall process provided by
steps [i]–[vi] recites the abstract concept of “[m]ental processes.” Id.
Put another way, the claim recites multiple instances of receiving and
analyzing or otherwise manipulating data, and eventually, displaying results
(“provides the external data”). Such mental processes, which could
alternatively be performed by a human using pen and paper, have been held
by the courts to be abstract ideas.
The Federal Circuit has held that if a method can be performed by
human thought alone, or by a human using pen and paper, it is merely an
abstract idea and is not patent-eligible under § 101. CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011) (“[A] method
that can be performed by human thought alone is merely an abstract idea and
is not patent-eligible under § 101.”). Similarly, the Federal Circuit has found
claims directed to “collecting information, analyzing it, and displaying
certain results of the collection and analysis” as directed to a patent-
ineligible abstract idea. Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350, 1353 (Fed. Cir. 2016). Accordingly, the various steps [i]–[vi] recited
in independent claim 1 all describe the abstract idea. The abstract idea, even
when automated to reduce the burden on the user of what once could have
been done with pen and paper, remains an abstract idea. CyberSource, 654
F.3d at 1375 (“That purely mental processes can be unpatentable, even when
performed by a computer, was precisely the holding of the Supreme Court in
Gottschalk v. Benson.”).
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Thus, we determine claim 1 recites a judicial exception. For these
same reasons, we also determine claims 10 and 16 recite a judicial
exception.
Step 2A, Prong Two
Because claims 1, 10, and 16 recite a judicial exception, we next
determine if the claims recite additional elements that integrate the judicial
exception into a practical application.
In addition to the limitations of claim 1 discussed above that recite
abstract concepts, claim 1 further recites “[a] computing system,” “a
processor,” “memory,” “a computing element,” “an application programing
interface (API),” “a native data provider,” “an external system data
provider,” and “an external computing system.”
The Specification does not provide additional details that would
distinguish the additional limitations from a generic implementation of the
abstract idea. See Spec. ¶¶ 17, 18, 22, 32, 50.
For example, Appellant’s Specification discloses “[c]omputing system
102 illustratively generates a set of user interface displays 106, with user
input mechanisms 108, for interaction by one or more users 110.” Spec.
¶ 17. Appellant’s Specification further discloses “[external c]omputing
system 104 is shown generating user interface displays 112, with user input
mechanisms 114, for interaction by one or more users 116.” Spec. ¶ 18.
Appellant’s Specification further discloses “[i]n one embodiment, the
processors and servers include computer processors with associated memory
and timing circuitry, not separately shown.” Spec. ¶ 50.
For example, Appellant’s Specification discloses “[t]he request can be
from an upper level computing system component [(computing element)] in
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Application 14/747,750
11
computing system 102 (such as synchronization system 124, an explorer, a
UI processing component 142, another application function 140, etc.).”
Spec. ¶ 32. Appellant’s Specification further discloses
Data providers 126 expose a common set of application
programming interfaces (APIs) 128. Data providers 126
illustratively include one or more native data providers 130 that
provide access to native data in one or more native data stores
132. Data providers 126 also illustratively include one or more
external system data providers (or virtual data providers) 134 that
provide access to data in a corresponding external system (such
as external system 104).
Spec. ¶ 22.
We do not find the recited computer-related limitations are sufficient
to integrate the judicial exception into a practical application. Specifically,
there is no improvement to the functioning of the computer, but, instead, the
computer merely implements the abstract idea. In this case, we do not see
any particular machine or manufacture that is integral to the claim; nor do
we see any transformation. That is, we do not see any of the additionally
recited elements applying or using the judicial exception in any meaningful
way beyond generally linking the judicial exception to the recited elements.
Put another way, the claim recites multiple instances of receiving and
analyzing or otherwise manipulating data, and eventually, displaying
results—mental processes. The additional recited claim elements merely
implement these mental processes, and the Specification does not provide
additional details that would distinguish the implementation from a generic
implementation. See Spec. ¶¶ 17, 18, 22, 32, 50.
Thus, we determine claim 1 is directed to a judicial exception because
claim 1 does not recite additional elements that integrate the recited judicial
exception into a practical application. Because claims 10 and 16 recite
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similar additional limitations as claim 1, for these same reasons, we also
determine claims 10 and 16 are directed to a judicial exception because
claims 10 and 16 do not recite additional elements that integrate the recited
judicial exception into a practical application.
In addition, claim 6 further recites “a synchronization system.” The
“synchronization system” receives data and synchronizes it. See Claim 6.
Appellant’s Specification discloses “[f]or instance, if external computing
system 104 stores a customer entity with an external schema that has two
address fields, but computing system 102 stores the customer entity with a
native schema that has three address fields, then synchronization system 124
transforms the retrieved data into a record with three address fields.” Spec.
¶ 28 (emphasis added). Thus, the “synchronization system” merely
implements part of the abstract idea (synchronizing or transforming data, a
mental process), and the Specification does not provide additional details
that would distinguish the implementation from a generic implementation.
See Spec. ¶ 28; see also Spec. ¶ 33, cited in, Ans. 8.
In addition, claim 7 further recites “a data accessing system.” The
“data accessing system” access data (through the API) and provides data (to
the computing element). See Claim 7. Appellant’s Specification discloses
Data accessing system 122 can illustratively include a wide
variety of components for performing various processing steps
on data. For instance, it can include security component 144, that
manages security of data accessed by other upper level
components in computing system 102. It can include caching
component 146 that manages caching of data. It can include
filtering component 148 that manages filtering of data. It can
include data source identifier 150 that identifies a particular data
source (e.g., data provider 126) to be interacted with, based upon
a call for data. It can include data source accessing component
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152 that uses APIs 128 to access data from the various data
providers, and it can include other items 154.
Spec. ¶ 23. Thus, the “data accessing system” merely implements part of the
abstract idea (accessing and providing data, a mental process), and the
Specification does not provide additional details that would distinguish the
implementation from a generic implementation. See Spec. ¶ 23; see also
Spec. ¶ 47, cited in, Ans. 8.
Thus, we determine claims 6 and 7 are directed to a judicial exception
because claims 6 and 7 do not recite additional elements that integrate the
recited judicial exception into a practical application.
Is there something else in the claims that ensures that they are
directed to significantly more than a patent ineligible concept?
Step 2B
Because claims 1, 6, 7, 10, and 16 are directed to a judicial exception,
we must determine, according to Alice, whether these claims recite an
element, or combination of elements that is enough to ensure that the claim
is directed to significantly more than a judicial exception.
The conventional or generalized functional terms by which the
computer components are described reasonably indicate that Appellant’s
Specification discloses conventional components. See Spec. ¶¶ 17, 18, 22,
23, 28, 32, 33, 47, 50. Further, the Specification does not provide additional
details about the computer that would distinguish the recited components
from generic implementation individually and generic implementation in the
combination. See Spec. ¶¶ 17, 18, 22, 23, 28, 32, 33, 47, 50.
In view of Appellant’s Specification, the claimed computer
components are reasonably determined to be generic, purely conventional
computer elements. Thus, the claims do no more than require generic
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computer elements to perform generic computer functions, rather than
improve computer capabilities.
Accordingly, we determine that claims 1, 10, and 16 are not directed
to significantly more than a patent ineligible concept.
Appellant’s principal arguments
Appellant presents the following principal arguments:
i. The Final Action improperly abstracts away various elements
of claims 1, 10, and 16 before determining the claims are directed to an
abstract idea. See Br. 8–10.
ii. “[T]hese claims are not directed to data or information in its
non-tangible form, as the Federal Circuit considered the Digitech claims to
be.” Br. 11.
iii.
Appellant respectfully submits that all claims 1–20 recite
specific hardware and software components that cooperate to
provide a low-level information handling system that is able to
accommodate external calls to data systems having different data
schema in a flexible and extensible manner. Accordingly,
Appellant respectfully submits that claims 1–20 meet the
showing of an improvement to the computer system itself like
the claims of the Finjan decision.
Br. 12.
iv.
Appellant respectfully submits that like the claims of Core
Wireless . . . , claims 1–20 of the present application improve a
computer system by providing more efficient handling of
relatively low-level data access requests to both the native data
system and access requests that must be handled by an external
system because the higher level components in the data system
do not need to constrain the data requests to particular schemas
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of the external data systems. Instead, the higher level
components may interact with the external data providers as i[f]
they are native components of the computing system.
Br. 14.
v.
[D]ependent claims 6 and 7, [] provide the additional computer
components of “a synchronization system” and “a data accessing
system”, respectively. Accordingly, Appellant respectfully
submits that while the dependent claims should be considered to
be patent eligible by virtue of their dependence from patent
eligible independent claims, the final Office Action has failed to
set forth a prima facie rejection in view of the Alice decision.
Br. 15.
We do not see any reversible error in the Examiner’s findings. We
concur with the Examiner’s conclusions.
Regarding Appellant’s arguments (i) and (ii), these arguments do not
show any error because, above, we apply the 2019 Revised Guidance and
determine that the claims are directed to an abstract idea without
significantly more. Specifically, we determine that the overall process
provided by the claims describes a combination of “observation, evaluation,
judgment, opinion.” 2019 Revised Guidance, 84 Fed. Reg. at 52. Thus, the
overall process provided by the claims recites mental processes that are
recognized as abstract ideas. Id. Further, for the reasons discussed above, we
determine that the claims are directed to these mental process without
significantly more. See also Ans. 5–6.
Regarding Appellant’s arguments (iii) and (iv), these arguments do
not show any error because the argued elements are not additional elements
but are part of the abstract concepts in the form of “[m]ental processes.”
2019 Revised Guidance, 84 Fed. Reg. at 52. Appellant’s identified
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improvements are improvements to the abstract idea because, for example,
data is collected (“receiving the data access request,” “engaging one,”
“provides native data,” “receives the external data”), data is analyzed
(“performs a logic operation,” “converts a data access call,” “transform the
external data”), and results are displayed (“provides the external data”),
which are a combination of “observation, evaluation, judgment, opinion.” Id.
Thus, the identified improvements recite the abstract concept of “[m]ental
processes.” Id. Therefore, on the record before us, the claim limitations do
not improve the functionality of the various hardware components, nor do
they achieve an improved technological result in conventional industry
practice. McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299,
1316 (Fed. Cir. 2016); see also Ans. 6–8.
Regarding Appellant’s argument (v), this argument does not show any
error because, as explained above, we apply the 2019 Revised Guidance and
determine that the “synchronization system” (claim 6) merely implements
part of the abstract idea (synchronizing or transforming data, a mental
process), the “data accessing system” (claim 7) merely implements another
part of the abstract idea (accessing and providing data, a mental process), the
Specification does not provide additional details that would distinguish the
implementations from generic implementations, and the claims do no more
than require generic computer elements to perform generic computer
functions, rather than improve computer capabilities. Appellant has not
raised any particularized arguments with respect to any of the other
dependent claims.
CONCLUSION
The Examiner’s rejection is affirmed.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Basis Affirmed Reversed
1–20 101 Judicial
Exception
1–20

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED