Battelle Memorial InstituteDownload PDFPatent Trials and Appeals BoardMay 26, 202014548159 - (D) (P.T.A.B. May. 26, 2020) Copy Citation 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. 14/548,159 11/19/2014 Thomas E. Carroll 23-93786-01 5301 32215 7590 05/26/2020 KLARQUIST SPARKMAN, LLP 121 SW SALMON STREET, SUITE 1600 ONE WORLD TRADE CENTER PORTLAND, OR 97204 EXAMINER SITIRICHE, LUIS A ART UNIT PAPER NUMBER 2126 NOTIFICATION DATE DELIVERY MODE 05/26/2020 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): docketing@klarquist.com erin.vaughn@klarquist.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte THOMAS E. CARROLL, SATISH CHIKKAGOUDAR, THOMAS W. EDGAR, KIRI J. OLER, KRISTINE M. ARTHUR, DANIEL M. JOHNSON, and LARS J. KANGAS ____________ Appeal 2019-002155 Application 14/548,159 Technology Center 2100 ____________ Before ELENI MANTIS MERCADER, NORMAN H. BEAMER, and GARTH D. BAER, Administrative Patent Judges. BEAMER, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1–9, 11, 12, 14, 16–18, and 20–22. We have jurisdiction over the pending rejected claims under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the Battelle Memorial Institute as the real party in interest. (Appeal Br. 2.) Appeal 2019-002155 Application 14/548,159 2 THE INVENTION Appellant’s disclosed and claimed invention is directed to a network analysis tool that receives network flow information and uses deep learning (that is, machine learning that models high-level abstractions in the network flow information) to identify dependencies between network assets. (Abstract.) Independent claim 1, reproduced below, is illustrative of the subject matter on appeal: 1. One or more non-transitory computer-readable media storing computer-executable instructions for causing a computing system, when programmed thereby, to perform: receiving network flow information, the network flow information summarizing packet flow between pairs of network assets over one or more time periods; identifying functional dependencies between multiple network assets based on evaluation of the network flow information, wherein a functional dependency between network assets indicates that a first network asset comprises a service whose operation is dependent on a service provided by a second network asset, wherein the evaluation includes: pre-processing the network flow information to produce input vectors, the preprocessing comprising: combining instances of temporally proximate co-occurrences within the network flow information into higher-order combinations; encoding the higher-order combination as the input vectors; and annotating the input vectors with details about the network flow information; using deep learning to extract patterns in the input vectors, at least in part by applying a neural network to reveal similarities between the input vectors and producing output vectors, and by summarizing the output vectors, wherein the Appeal 2019-002155 Application 14/548,159 3 deep learning is machine learning that models high-level abstractions in the input vectors, and the summarizing comprises: performing hierarchical clustering on weight vectors produced by the neural network; associating the clustered weight vectors with corresponding details about the network flow information; and determining the dependencies based on the patterns; and outputting results of the identifying the functional dependencies, the results comprising functional dependencies between first and second network assets, wherein the results are useable for assessing damage to a network, business planning, crisis management or triage, planning extensions to the network, disaster recovery planning, or other evaluation of current or planned network behavior. Appeal Br. 27–28. (Claims Appendix.) REJECTION The Examiner rejected claims 1–9, 11, 12, 14, 16–18, and 20–22 under 35 U.S.C. § 101 as being directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. (Ans. 3; Final Act. 2.)2 2 Appellant filed an after-final amendment dated April 27, 2018 that was accepted by the Examiner, in which claims 1, 6, 11, 14, 16, 17, and 20–22 were amended and claims 10, 13, 15, and 19 were canceled. In response, the Examiner withdrew the outstanding obviousness rejections for claims 1–4, 6–9, and 12–14. See Final Act. 7–23; Adv. Act. 1–2; Ans. 3. Appeal 2019-002155 Application 14/548,159 4 ISSUE ON APPEAL Appellant’s arguments in the Appeal and Reply Briefs present the following issue:3 Whether the Examiner erred in finding claims 1–9, 11, 12, 14, 16–18, and 20–22 are directed to a judicial exception without significantly more. (Appeal Br. 6–26; Reply Br. 2–8.) ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments. Arguments Appellant could have made but chose not to make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv)(2017). The Examiner concludes that “the claim(s) are directed towards receiving network flow information, evaluating the information for dependencies, and determining and outputting the identified dependencies” (Final Act. 3) and “the abstract idea [is] similar to ‘[c]ollecting information, analyzing it, and displaying certain results of the collection and analysis.’” (Final Act. 3, citing Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016).) The Examiner further concludes that [t]he claims do not offer something that can be considered to be [] significantly more than the judicial exception since they are related to details about the type of network flow information (information), update dependencies (analysis), types of identified dependencies as patterns (further analysis), categorizing network flows (further analysis), among other 3 Rather than reiterate the arguments of Appellant and the positions of the Examiner, we refer to the Appeal Brief (filed Aug. 7, 2018); the Reply Brief (filed Jan. 14, 2019); the Final Office Action (mailed Feb. 7, 2018); the Advisory Action (mailed May 11, 2018); and the Examiner’s Answer (mailed Nov. 16, 2018) for the respective details. Appeal 2019-002155 Application 14/548,159 5 details [are] directed to abstract ideas; which are still considered as “collecting data, analyzing it, and displaying results.” (Ans. 9, emphasis in original.) Appellant argues that “none of ‘collecting information,’ ‘analyzing information,’ or ‘displaying results’ are “mathematical concepts,” “certain methods of organizing human activity”, and “mental processes.” (Reply Br. 4.) Appellant contends “[t]he [c]laimed [s]ubject [m]atter [i]s [n]ot [d]irected to a [j]udicial [e]xception.” (Reply Br. 4.) Appellant argues the claims reflect a technical improvement, because, inter alia, in the claimed invention a computing system does not require special monitoring agents, and us[es] summarized network information, to reduce privacy and security concerns, which were problems of various prior techniques for determining dependencies between network assets. (Appeal Br. 8, citing Spec. ¶¶ 4–6, 34.) We agree with Appellant and are not persuaded that the claims are directed to patent-ineligible subject matter. An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. Here, independent claim 1 relates to a computer program product, independent claim 17 relates to a method, and independent claim 20 relates to a system — i.e., an article of manufacture, process, and machine, respectively. However, the Supreme Court has long held that “[l]aws of nature, natural phenomena, and abstract ideas are not patentable.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Assoc. for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 598–99 (2013)). The “abstract ideas” category embodies the Appeal 2019-002155 Application 14/548,159 6 longstanding rule that an idea, by itself, is not patentable. Alice, 573 U.S. at 216–17. In Alice, the Supreme Court sets forth an analytical “framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Id. 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,” such as an abstract idea. Id. 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 v. Kappos, 561 U.S. 593, 611 (2010); mathematical concepts (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (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 water-proof 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))). If the claims are directed to a patent-ineligible concept, the second step in the Alice/Mayo 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.” 573 U.S. at 217 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)). 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 Appeal 2019-002155 Application 14/548,159 7 patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” 573 U.S. at 217–18 (quoting Mayo, 566 U.S. at 72–73.) 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. 573 U.S. at 221. A transformation into a patent-eligible application requires more than simply stating the abstract idea although adding the words “apply it.” Id. Further to the Alice/Mayo analytical framework, and acknowledged by Appellant in the Reply Brief (see, for example, Reply Br. 2), the USPTO published revised guidance on the application of Section 101. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (hereinafter “Revised Guidance”); USPTO October 2019 Update: Subject Matter Eligibility (Oct. 17, 2019) (“Update”), noticed at 84 Fed. Reg. 55942 (Oct. 18, 2019). Under the Revised Guidance, 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); and (2) additional elements that integrate the judicial exception into a practical application (see Manual Patent Examining Procedure, “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, does the Office then look to whether the claim: Appeal 2019-002155 Application 14/548,159 8 (3) adds a specific limitation beyond the judicial exception that are 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 Revised Guidance. In evaluating the claims at issue, we consider independent claim 1 as representative, consistent with how Appellant and the Examiner analyze the claims. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 1 recites “applying a neural network to reveal similarities between the input vectors” and “performing hierarchical clustering on weight vectors.” As stated in the Revised Guidance, mathematical concepts considered an abstract idea include “mathematical relationships, mathematical formulas or equations, [and] mathematical calculations.” (Revised Guidance, 84 Fed. Reg. at 52). The Update states that [a] claim that recites a mathematical calculation will be considered as falling within the “mathematical concepts” grouping. A mathematical calculation is a mathematical operation (such as multiplication) or an act of calculating using mathematical methods to determine a variable or number, e.g., performing an arithmetic operation such as exponentiation, and further that a step of “determining” a variable or number using mathematical methods or “performing” a mathematical operation may also be considered mathematical calculations when the broadest reasonable interpretation of the claim in light of the specification encompasses a mathematical calculation. Appeal 2019-002155 Application 14/548,159 9 (Update at 4.) Here, the disclosure indicates the claimed “applying a neural network to reveal similarities between the input vectors” involves appl[ying] a SOM [“self-organizing map”], which is a two- dimensional unsupervised neural network that can be used to generalize, quantify and identify patterns in the input vectors. In general, a SOM associates output nodes of the SOM with groups or patterns in the input data set. (Spec. ¶ 89.) Similarly, the disclosure indicates the claimed “performing hierarchical clustering on weight vectors,” in which hierarchical clustering successively groups output vectors that are “close” according to some metric (such as Euclidean distance, squared Euclidean distance, Manhattan distance or maximum distance) and linkage criteria, gradually collapsing the initial output vectors into fewer output vectors, until an exit condition is reached (e.g., relating to the number of collapses or distance between remaining (collapsed) output vectors). (Spec. ¶ 92.) Under the broadest reasonable interpretation, the cited claim steps describe the “act of calculating using mathematical methods to determine a variable or number,” and are considered as “mathematical calculations.” The claim thus describes “mathematical concepts” that include “mathematical calculations.” Therefore, we agree with the Examiner that the subject matter of claim 1 recites an abstract idea, as do the remaining claims. Further pursuant to the Revised Guidance, we consider whether there are additional elements set forth in the claims that integrate the judicial exception into a practical application. (Revised Guidance, 84 Fed. Reg. at 54–55.) Claim 1 recites (with emphasis added) identifying functional dependencies between multiple network assets based on evaluation of the network flow information, Appeal 2019-002155 Application 14/548,159 10 wherein a functional dependency between network assets indicates that a first network asset comprises a service whose operation is dependent on a service provided by a second network asset. This limitation integrates the recited judicial exception into a practical application. According to the disclosure, “[i]nformation technology personnel are often unaware of dependencies between network assets . . . especially in a large network.” (Spec. ¶ 3.) Networks that include resources such as the ‘Internet of Things’ and ‘Bring Your Own Device or Technology’ result in “network assets that may be characterized by spatial transiency, temporal transiency, and ephemeral lifetimes.” (Spec. ¶ 3.) The claimed identification of functional dependencies can be used to “discover functional relationships between network assets, which can in turn help decision-makers to assess the importance of the network assets to business processes that those network assets serve.” (Spec. ¶ 21; see also Spec. ¶ 34.) Here, the claimed invention “uses a judicial exception in conjunction with, a particular machine or manufacture” — a computer network — “that is integral to the claim.” (Revised Guidance, 84 Fed. Reg. at 55.) Thus, the claims as a whole integrate the recited judicial exception into a practical application. As such, the claimed subject matter is not directed to a judicial exception, and is patent-eligible. Revised Guidance, 84 Fed. Reg. at 54–55. Accordingly, we do not sustain the Examiner’s 35 U.S.C. § 101 rejection of the pending claims. Appeal 2019-002155 Application 14/548,159 11 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–9, 11, 12, 14, 16–18, 20–22 101 Eligibility 1–9, 11, 12, 14, 16–18, 20–22 REVERSED Copy with citationCopy as parenthetical citation