Arora, Deepesh et al.

Patent Trials and Appeals Board

Oct 21, 2019

14462068 - (D) (P.T.A.B. Oct. 21, 2019)

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.
14/462,068 08/18/2014 Deepesh Arora 1424/135/2 4522
148415 7590 10/21/2019
Keysight Technologies, Inc.
In care of: CPA Global
900 Second Avenue South
Suite 600
Minneapolis, MN 55402
EXAMINER
ANDERSON, LYNNE D
ART UNIT PAPER NUMBER
2862
NOTIFICATION DATE DELIVERY MODE
10/21/2019 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):
keysightdocketing@cpaglobal.com
notice.legal@keysight.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DEEPESH ARORA, KIRIT BHAMRE, and NOAH GINTIS
____________

Appeal 2019-001294
Application 14/462,068
Technology Center 2800
____________

Before MICHAEL P. COLAIANNI, MICHAEL G. McMANUS, and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s decision to finally reject claims 1–3, 7, 8, 10–13, 17, 18, 20, and
212. We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to the “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Keysight
Technologies Singapore (Holdings) PTE. Ltd. Appeal Brief filed May 21,
2018 (“Appeal Br.”), 2.
2 Final Office Action entered September 25, 2017 (“Final Act.”).
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CLAIMED SUBJECT MATTER
Appellant claims a method, system, and non-transitory computer
readable medium for benchmark reference testing of data center or network
equipment. Appeal Br. 5–8. Independent claims 1, 11, and 21 illustrate the
subject matter on appeal, and are reproduced below with emphasis added to
highlight subject matter of particular relevance to the present appeal:
1. A method for benchmark reference testing of data center
or network equipment, the method comprising:
using a network or data center test device:
executing a plurality of performance tests to test a
plurality of different performance parameters of a network or
data center device under test, wherein executing the
performance tests includes generating test traffic, sending the
test traffic to the network or data center device under test, and
receiving the test traffic from the network or data center device
under test and wherein the performance tests include separate
tests for a plurality of different frame sizes for each of
throughput, latency, jitter, and frame loss due to congestion;
obtaining individual test results for each of the different
performance parameters, wherein the individual test results
include a composite score for the different frame sizes for each
of latency, throughput, jitter, and frame loss due to congestion;
generating a multi-dimensional score that combines the
individual test results from the different performance
parameters to indicate a composite performance of the data
center or network device, wherein generating the multi-
dimensional score includes generating the multi-dimensional
score based on the received test traffic and wherein the multi-
dimensional score comprises a single value that combines the
composite scores for the different frame sizes for each of
throughput, latency, jitter, and frame loss due to congestion;
and
outputting the multi-dimensional score to a user.

11. A system for benchmark reference testing of data center
or network equipment, the system comprising:
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a network or data center test device including:
a traffic generation module for executing a plurality of
performance tests to test a plurality of different performance
parameters of a network or data center device under test,
wherein executing the performance tests includes generating
test traffic, sending the test traffic to the network or data center
device under test, and receiving the test traffic from the network
or data center device under test and wherein the performance
tests include separate tests at a plurality of different frame sizes
for each of throughput, latency, jitter, and frame loss due to
congestion;
a test results metrics module for obtaining individual test
results for each of the different performance parameters,
wherein the individual test results include a composite score for
the different frame sizes for each of latency, throughput, jitter,
and frame loss due to congestion; and
a performance index module for generating a multi-
dimensional score that combines the individual test results from
the different performance parameters to indicate a composite
performance of the data center or network device and
outputting the multi-dimensional score to a user, wherein
generating the multi-dimensional score includes generating the
multi-dimensional score based on the received test-traffic and
wherein the multi-dimensional score comprises a single value
that combines the composite scores for the different frame sizes
for each of throughput, latency, jitter, and frame loss due to
congestion.

21. A non-transitory computer readable medium having
stored thereon executable instructions that when executed by
the processor of a computer control the computer to perform
steps comprising:
using a network or data center test device:
executing a plurality of performance tests to test a
plurality of different performance parameters of a network or
data center device under test, wherein executing the
performance tests includes generating test traffic, sending the
test traffic to the network or data center device under test, and
receiving the test traffic from the network or data center device
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under test and wherein the performance tests include separate
tests for a plurality of different frame sizes for each of
throughput, latency, jitter, and frame loss due to congestion;
obtaining individual test results for each of the different
performance parameters, wherein the individual test results
include a composite score for the different frame sizes for each
of latency, throughput, jitter, and frame loss due to congestion;
generating a multi-dimensional score that combines the
individual test results from the different performance
parameters to indicate a composite performance of the data
center or network device, wherein generating the multi-
dimensional score includes
generating the multi-dimensional score based on the
record test-traffic and wherein the multi-dimensional score
comprises a single value that combines the composite scores for
the different frame sizes for each of throughput, latency, jitter,
and frame loss due to congestion; and
outputting the multi-dimensional score to a user.

App. Br. 20–24 (Claims Appendix) (emphasis added).
REJECTION
The Examiner maintains the rejection of claims 1–3, 7, 8, 10–13, 17,
18, 20, and 21 under 35 U.S.C. § 101 as directed to a judicial exception
without significantly more in the Examiner’s Answer entered September 28,
2018 (“Ans.”)3.

3 The Examiner indicates in the Answer that the Examiner withdrew the
final rejection of claims 1–3, 7, 8, 10–13, 17, 18, 20, and 21 under 35 U.S.C.
§ 103(a) (Final Act. 10–19). Ans. 2. In addition, although the Examiner
omits claim 8 from the heading of the rejection under 35 U.S.C. § 101 in the
Final Action (Final Act. 2), and also omits claim 8 when referring to the
rejection under §101 in the Answer (Ans. 2), these omissions appear to be
due to inadvertent typographical errors because the Examiner addresses
claim 8 in the body of the §101 rejection in the Final Action. Final Act. 4–5.
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FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions, we reverse the Examiner’s rejection of
claims 1–3, 7, 8, 10–13, 17, 18, 20, and 21 under 35 U.S.C. § 101, for the
reasons set forth in the Appeal Brief and below.
The Examiner rejects claims 1–3, 7, 8, 10–13, 17, 18, 20, and 21
under 35 U.S.C. § 101 as being directed to a judicial exception without
significantly more. Final Act. 2. In so doing, the Examiner determines that
the elements recited in the independent claims of “individual test results
[that] include a composite score for the different frame sizes for each of
latency, throughput, jitter and frame loss due to congestion,” and “generating
a multi-dimensional score . . . [comprising] a single value that combines the
composite scores for the different frame sizes for each of throughput,
latency, jitter and frame loss due to congestion,” constitute “the collection
and analysis of received data,” which, according to the Examiner, is an
abstract idea, “similar to” Electric Power Group, LLC v. Alstom S.A., 830
F.3d 1350 (Fed. Cir. 2016). Final Act. 2–3, 5–6, 7–9.
The Examiner determines that the additional elements recited in the
independent claims “do not provide meaningful limitation(s) to transform
the abstract idea into a patent eligible application of the abstract idea such
that the claim(s) amounts to significantly more than the abstract idea itself.”
Final Act. 3–4, 6, 9. Specifically, the Examiner determines that “executing a
plurality of performance tests” and “obtaining individual test results for each
of the different performance parameters,” appear to be “extra-solution
activity such as data gathering necessary to perform the abstract idea,” and
“outputting the multi-dimensional score to a user” is also “considered to be
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extra-solution activity such as displaying data,” while “using a data center or
network equipment appears to be the field of use or technical environment.”
Id.
The Examiner concludes that each of the independent claims is,
therefore, “directed to the abstract idea of an algorithm or mathematical
relationship/formula for a method for benchmark reference testing of data
center or network equipment.” Final Act. 2, 5, 7–8.
Appellant argues that their Specification “indicates that the claimed
generation of the multidimensional score that combines test results from
different performance tests and different parameters is a new way of
analyzing test data that allows network equipment from different vendors []
to be more consistently evaluated.” Appeal Br. 12 (citing Spec. 5, ll. 13–
25). Appellant argues that the independent claims, therefore, “recite an
improvement in computer network testing technology” because, as explained
in the Specification, “[b]y generating a multidimensional score across all of
the frame sizes and all of the various recited parameters, the user can more
easily and accurately compare network or data center equipment from
different vendors.” Appeal Br. 12–13 (citing Spec. 24, ll. 1–16).
The USPTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“2019 Guidance”). Under the 2019 Guidance, we
first look to whether a claim recites:
(Step 2A, Prong 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
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(Step 2A, Prong 2) additional elements that integrate the judicial
exception into a practical application (see MPEP
§ 2106.05(a)–(c), (e)–(h)).
2019 Guidance 54–55. Only if a claim: (1) recites a judicial exception; and
(2) does not integrate that exception into a practical application, do we then
look to whether the claim:
(Step 2B) adds a specific limitation beyond the judicial exception
that is not “well-understood, routine, conventional” in the
field (see MPEP § 2106.05(d)); or simply appends well-
understood, routine, conventional activities previously
known to the industry, specified at a high level of generality,
to the judicial exception.
2019 Guidance 56–57.
Applying Step 2A, Prong 1 of the 2019 Guidance, we determine that
the following elements in each of the independent claims recite an abstract
idea in view of the description of these elements in Appellant’s
Specification: “obtaining individual test results for . . . different
performance parameters . . . [that] include a composite score for the different
frame sizes for each of latency, throughput, jitter, and frame loss due to
congestion;” and “generating a multi-dimensional score . . . [that] comprises
a single value that combines the composite scores for the different frame
sizes for each of throughput, latency, jitter, and frame loss due to
congestion.”
Specifically, the Specification describes calculating composite scores
for different frame sizes for each of latency, throughput, jitter, and frame
loss due to congestion from measured values of latency, throughput, jitter,
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and frame loss due to congestion values, respectively, using equations set
forth in the Specification. Spec. 10, l. 13–18, l. 20; 21, l. 7–23, l. 15.
Similarly, the Specification describes calculating a multi-dimensional score
by adding the composite throughput, latency, jitter, and frame loss due to
congestion scores. Spec. 14, ll. 1–13. Consistent with these disclosures in
the Specification, the elements in the independent claims listed in the
preceding paragraph recite mathematical calculations, which are
mathematical concepts. These elements of the independent claims,
therefore, constitute abstract ideas. SAP America, Inc. v. InvestPic, LLC,
898 F.3d 1161, 1163 (Fed. Cir. 2018) (holding that claims to a “series of
mathematical calculations based on selected information” are directed to
abstract ideas).
We determine under step 2A, prong 2 of the 2019 Guidance, however,
that additional elements recited in the independent claims integrate the
recited mathematical concepts into a practical application. 2019 Guidance,
84 Fed. Reg. 54–55. As Appellant argues (Appeal Br. 12–13), the
Specification explains how generating a multidimensional score as recited in
the independent claims from results obtained by executing a plurality of
performance tests by generating test traffic, sending the test traffic to the
network or data center device under test, and receiving the test traffic from
the network or data center device under test, effects an improvement in
computer network testing technology.
The Specification indicates that the information technology (IT)
industry is in the midst of a fundamental change toward centralization of
application delivery via concentrated and dense private and public data
center cloud computing sites. Spec. 1, ll. 18–21. The Specification indicates
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that “enormous pressure” exists on data centers to make use of networking
devices that can forward data traffic as quickly as possible, because in
certain applications, such as high frequency trading and other financial
applications, differences in latency can result in millions of dollars in
revenue lost or gained. Spec. 1, l. 32–2, l. 7.
According to the Specification, data center managers often lack
sufficient knowledge and expertise to test and validate the performance of
different data center and networking devices. Spec. 2, ll. 8–16. The
Specification indicates that although device tests are available from test
system manufacturers, such tests can only assess a device’s individual
performance metrics, and do not characterize the device’s overall
performance. Spec. 2, ll. 17–21. In addition, as the Specification explains,
the results of such tests may vary greatly depending upon the testing
conditions used. Id. The Specification further explains that even if the same
test conditions are used for assessing individual performance parameters for
different devices, data center managers often find it difficult to characterize
the relative importance of varying test results for different devices. Spec. 2,
ll. 21–29. The Specification explains that multiple standardized tests also
exist for assessing a single parameter (such as latency), and data center
managers again find it difficult to characterize the relative importance of
results obtained from different standardized tests. Spec. 2, l. 30–3, l. 2.
The Specification indicates that the method, system, and non-
transitory computer readable medium recited in the independent claims
address these problems by providing a network or data center testing device
that executes a plurality of performance tests by generating test traffic,
sending the test traffic to a network or data center device under test, and
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receiving the test traffic from the network or data center device under test.
Spec. 3, ll. 8–17; 5, ll. 2–10. As recited in the independent claims and
explained in the Specification, the performance tests include separate tests
for a plurality of different frame sizes for each of throughput, latency, jitter,
and frame loss due to congestion. Spec. 5, ll. 13–20. As discussed above,
the independent claims recite that individual results for each of the
performance parameters tested are used to calculate a multidimensional
score, which represents the composite performance of the data center or
network devices, as described in the Specification. Spec. 5, ll. 13–21.
The Specification explains that this approach allows a data center
manager to execute a battery of different performance parameter tests,
generate a single multidimensional score that combines the results from the
individual tests, and use the score to evaluate the relative performance of
network or data center equipment across a range of performance parameters.
Spec. 5, ll. 20–25. The Specification indicates that “[t]he fact that the score
is multidimensional makes apples to apples comparison of network
equipment easier.” Spec. 24, ll. 13–16.
These Specification disclosures, therefore, show that executing a
plurality of performance tests on data center or network equipment as recited
in the independent claims by generating test traffic, sending the test traffic to
the network or data center device under test, receiving the test traffic from
the network or data center device under test, and calculating a
multidimensional score from the results of the individual tests, address the
difficulty in the art of testing and characterizing the overall performance of
data center and networking equipment, and allow the performance of
different devices to be meaningfully compared. In this way, the elements of
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the independent claims as a whole define a specific method, system, and
computer-readable medium that improve computer network testing
technology. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258–
59 (Fed. Cir. 2014).
The steps recited in the independent claims of executing a plurality of
performance tests on data center or network equipment by generating test
traffic, sending the test traffic to the network or data center device under test,
and receiving the test traffic from the network or data center device under
test, therefore, impose a meaningful limit on the recited mathematical
concepts in a manner that integrates the mathematical concepts into a
particular practical application. MPEP § 2106.05(a)(II).
We, accordingly, do not sustain the Examiner’s rejection of claims 1–
3, 7, 8, 10–13, 17, 18, 20, and 21 under 35 U.S.C. § 101.

CONCLUSION

Claims
Rejected
Basis Affirmed Reversed
1–3, 7, 8, 10–13, 17,
18, 20, and 21
§ 101 1–3, 7, 8, 10–13,
17, 18, 20, and 21

REVERSED