DELL PRODUCTS, LP

Patent Trials and Appeals Board

Feb 23, 2021

2019004864 (P.T.A.B. Feb. 23, 2021)

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.
14/223,779 03/24/2014 Lewis I. McLean DC-103060 8784
114324 7590 02/23/2021
Larson Newman, LLP (Dell)
3575 Far West Blvd.
#30496
Austin, TX 78731
EXAMINER
SPARKS, JONATHAN A
ART UNIT PAPER NUMBER
2459
NOTIFICATION DATE DELIVERY MODE
02/23/2021 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@larsonnewman.com
jjordan@larsonnewman.com
jsmith@larsonnewman.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LEWIS I. MCLEAN
____________

Appeal 2019-004864
Application 14/223,779
Technology Center 2400
____________

Before JOSEPH L. DIXON, MAHSHID D. SAADAT, and
DONNA M. PRAISS, Administrative Patent Judges.

PRAISS, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1, 4, 5, 7–9, 11, 12, and 24–29.2 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 Dell Products, LP, Dell Software Inc.,
and SecureWorks, Inc., as the real parties in interest. Appeal Brief, filed
Sept. 27, 2018 (“Appeal Br.”) 3.
2 Final Office Action, dated Mar. 27, 2018 (“Final Act.”); Advisory Action,
dated June 28, 2018 (“Advisory Act.”) (amendment entered cancelling
claims 15–19 and 23).
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STATEMENT OF THE CASE
A. Background
The subject matter on appeal “relates to information handling systems,
and more particularly relates to determining normal sequences of events in
information handling systems.” Specification, filed Mar. 24, 2014 (“Spec.”)
¶ 1. According to the Specification, information handling systems may be
general or “configured for a specific user or specific use such as financial
transaction processing, airline reservations, enterprise data storage, or global
communications.” Id. ¶ 2.
The Specification explains that “determining normal sequences of
events may include classifying events into event types and performing an
analysis to determine normal sequences of event types.” Id. ¶ 17. According
to the Specification, the determination of normal events may aid in the
detection of anomalous behavior in a set of events. Id. ¶ 18. Such anomalous
behavior, the Specification states, may be “indicative of security risks.” Id.
Of the appealed claims, claims 1 and 11 are independent. Claim 1 is
representative of the subject matter on appeal, and is reproduced below:
1. A method comprising:
classifying by an information handling system events into event
types;
forming first sequences based upon events of a first time period,
wherein the forming first sequences includes:
determining probabilities of pairs of event types from the events
of the first time period; and
concatenating pairs of event types into sequences, wherein the
probability of each pair exceeds a threshold probability
value;
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forming second sequences based upon events of a second time
period, the second time period later than the first time
period;
matching a portion of sequences of the second sequences to
sequences of the first sequences, thereby producing
matched sequences of the second sequences, wherein:
a first element of one of the first sequences matches a second
element of one of the second sequences if the first
element and the second element are of the same event
type; and
the matching includes removing a third element from one of the
matched sequences of the second sequences when the
one of the matched sequences is matched to another of
the first sequences and the third element does not match
an element of the another of the first sequences, thereby
producing reduced matched sequences of the second
sequences;
for each element in each of the reduced matched sequences of
the second sequences, removing an event upon which the
element was based from the events of the second time
period; and
searching for anomalous events in the events of the second time
period after removing the event for the each element.
Appeal Br. 16–17 (Claims Appendix).

B. The Rejection
The Examiner maintains the rejection of claims 1, 4, 5, 7–9, 11, 12,
and 24–29 under 35 U.S.C. § 101 as being directed to patent ineligible
subject matter. Final Act. 7; Examiner’s Answer, dated Apr. 4, 2019
(“Ans.”) 27–28.
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OPINION
After having considered the evidence presented in this Appeal and
each of Appellant’s contentions, Appellant does not identify reversible error
with respect to the Examiner’s rejection of claims 1, 4, 5, 7–9, 11, 12, and
24–29. We affirm the Examiner’s rejection of those claims for the reasons
expressed in the Final Action, the Answer, and explained below.
A. Section 101
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, our
inquiry focuses on the Court’s two-part framework, described in Mayo and
Alice. Id. at 217–18 (citing Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (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 the Court has determined are abstract ideas and, thus, patent
ineligible, include certain methods of organizing human activity, such as
fundamental economic practices (e.g., Alice, 573 U.S. at 219–20);
mathematical formulas (e.g., Parker v. Flook, 437 U.S. 584, 594–95 (1978));
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and mental processes (e.g., Gottschalk v. Benson, 409 U.S. 63, 67 (1972)).
Concepts the Court has determined are 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))).
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 176; 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. (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 part
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.
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(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.
B. USPTO Section 101 Guidance
In January 2019, the United States Patent and Trademark Office
(“USPTO”) published revised guidance on the application of § 101. See
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (the “2019 Revised Guidance”).3 “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. 2018)) (“Step 2A, Prong Two”).4

3 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).
4 We perform this evaluation 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. at 54–55.
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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:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, [and] 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 2019 Revised Guidance, 84 Fed. Reg. at 52–55.
C. Analysis
We now apply the 2019 Revised Guidance to the claims. Appellant
argues the claims together. Appeal Br. 6–14. Therefore, we confine our
discussion to claim 1, which we select as representative. Claims 4, 5, 7–9,
11, 12, and 24–29 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
1. Step 2A, Prong One — The Judicial Exception
Under Step 2A, Prong One, of the 2019 Revised Guidance, we first
look to whether claim 1 recites a judicial exception, 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). 2019 Revised Guidance, 84 Fed. Reg. at 52–54.
The Examiner concludes that claim 1 is directed to an abstract idea.
Ans. 9. The Examiner finds, inter alia, that claim 1’s limitations “classifying
by an information handling system events into event types,” “forming first
sequences based upon events of a first time period . . . from the events of the
first time period,” and “concatenating pairs of event types into sequences . . .
the second time period later than the first time period” are directed to mental
processes. Id. at 5–6. More particularly, the Examiner determines that these
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limitations involve processes of organizing information that one can perform
with his or her mind. Id. at 6. The Examiner explains by way of example a
child classifying blocks by color or shape and a store clerk classifying
customers by their purchases in a single visit or over multiple visits. Id.
Regarding the claimed sequences, the Examiner explains by way of example
a sporting goods store clerk predicting in his or her mind with sufficient
confidence the high probability that the purchaser of a baseball mitt will also
buy a baseball. Id. at 7–8.
Similarly, the Examiner finds the steps beginning with “matching a
portion of sequences of the second sequences” and ending with “searching
for anomalous events in the events of the second time period after removing
the event for the each element” may be performed in the human mind. Ans.
8–9. The Examiner explains by example a store clerk matching a customer’s
actions to an observed normal sequence of events such as browsing, trying
on items, placing items in a shopping basket, proceeding to checkout to
purchase items, and exiting the store. Id. at 8. The clerk can match these
events as normal events to a new customer who, in addition to the normal
sequence of events, additionally goes into a restroom with the shopping cart,
to determine the event is an anomalous event that may indicate a potential
shoplifting. Id. at 9.
Citing McRO, Inc. v. Bandai Namco Games America, Inc., 837 F.3d
1299 (Fed. Cir. 2016), and Enfish v. Microsoft, 822 F.3d 1327 (Fed. Cir.
2016), Appellant contends claim 1 is directed to “a method of producing a
result, not towards the result itself.” Appeal Br. 8. Specifically, Appellant
asserts the invention of claim 1 is similar to the invention at issue in McRO
because “[t]he claims in this application similarly describe improvements to
the functioning of a computer through improved software and are directed to
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a specific implementation of a solution to a problem in the software arts,
namely a more efficient technique for detecting anomalous events and
potential security risks.” Id. (citing Spec. ¶ 50 (describing how removing
events contained in normal sequences may reduce the search necessary to
detect anomalous events); Figs. 2A, 2B). In the Reply Brief, Appellant
contends the subject of the detection of anomalous events is computer
security. Reply Br. 3–4.
Appellant’s arguments are unpersuasive. Here, claim 1 includes the
limitations “classifying by an information handling system events into event
types” and “forming first sequences based upon events of a first time
period,” and “forming second sequences based upon events of a second time
period.” Appeal Br. 16 (Claims Appendix). Claim 1 also recites “matching a
portion of sequences of the second sequences to sequences of the first
sequences” and “searching for anomalous events in the events of the second
time period after removing the event for the each element.” Id. at 17.
These limitations regard collecting and organizing data. The Federal
Circuit has concluded that abstract ideas include the concepts of collecting
data, recognizing certain data within the collected data set, and storing the
data in memory. Content Extraction & Transmission LLC v. Wells Fargo
Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014). Such activities regard
longstanding conduct that existed well before the advent of computers and
mobile devices and a human could practically carry them out in his or her
mind. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375
(Fed. Cir. 2011) (“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.”). Similarly, the step of “classifying . . .
events into event types” is an activity that a person is able to perform
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practically with his or her mind, such as based on a common property or
feature, and therefore falls within the “mental processes” grouping of
abstract ideas involving observation, evaluation, judgment, or opinion. See
Ans. 8–9.
Appellant’s comparison of claim 1 to McRO fails to persuade us that
claim 1 does not recite mental processes. In McRO, the Federal Circuit
disagreed with a district court’s determination that claims were “drawn to
the [abstract] idea of automated rules-based use of morph targets and delta
sets for lip-synchronized three-dimensional animation.” 837 F.3d at 1313
(quoting McRO, Inc. v. Sony Computer Entm’t Am., LLC, 55 F.Supp.3d
1214, 1226 (C.D. Cal. 2014)). Instead, the Federal Circuit determined that
“the claims are limited to rules with specific characteristics.” Id. at 1313.
More specifically, the Federal Circuit stated:
[a]s the district court recognized during claim construction, “the
claims themselves set out meaningful requirements for the first
set of rules: they ‘define[ ] a morph weight set stream as a
function of phoneme sequence and times associated with said
phoneme sequence.’”
Id. The Federal Circuit determined “[t]he specific, claimed features of these
rules allow for the improvement realized by the invention.” Id.
In contrast, Appellant’s claim 1 does not recite any rules with specific
characteristics. Although rules of some general nature may be implicated
within some of claim 1’s limitations (e.g., “concatenating pairs of event
types into sequences, wherein the probability of each pair exceeds a
threshold probability value”), claim 1 does not recite rules with specific
characteristics for those limitations. In the Reply Brief, Appellant asserts
that the claimed method cannot be practically performed in the mind because
the method involves “massive numbers of events as they are events of a
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computer system.” Reply Br. 10. However, the claim does not recite steps
that are outside the realm of what can be practically performed in the human
mind.
In view of the foregoing, several limitations of claim 1 reasonably
involve mental processes, including observation, evaluation, and judgment.
The 2019 Revised Guidance expressly recognizes mental processes as
constituting an abstract idea. 84 Fed. Reg. at 52. Accordingly, claim 1 recites
a judicial exception to patent-eligible subject matter under Step 2A, Prong
One.
2. Step 2A, Prong Two — Integration into a Practical Application
Under Step 2A, Prong 2 of the 2019 Revised Guidance and the
October 2019 Update, we consider whether claim 1 as a whole integrates the
judicial exception into a practical application of the exception. The October
2019 Update explains that “[a]n important consideration to evaluate when
determining whether the claim as a whole integrates a judicial exception into
a practical application is whether the claimed invention improves the
functioning of a computer or other technology.” October 2019 Update, 12.
Appellant contends the claimed invention amounts to something
significantly more than an abstract idea under the Alice and Mayo
framework because the claims are “rooted in computer technology and
overcome problems specifically arising in computer systems.” Appeal Br.
11; see id. at 8 (“The claims in this application . . . describe improvements to
the functioning of a computer through improved software.”). More
particularly, Appellant asserts “[t]he claims in this application are directed to
improvements in the detection of anomalous events and to computer
security.” Id. at 12. Appellant argues that “[a]ll computer programs can be
viewed as collecting information, analyzing it, and displaying certain results
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of the collection and analysis” but the claimed method is distinguishable on
the basis that it “recite[s] concrete steps to be performed to improve the
detection of anomalous events.” Id. In support of these arguments, Appellant
asserts “the Specification states that it describes an improvement in the field
of detection of anomalous events and computer security.” Id. at 14.
Appellant also provides a Wikipedia.org link and quote for “Network
behavior anomaly detection (NBAD)” as support for the assertion that
“detection of anomalous events is a well-known subject in computer
security.” Id.
As the October 2019 Update provides, to determine whether the
claimed invention provides a technological improvement, we consider
whether Appellant’s Specification “provides sufficient details such that one
of ordinary skill in the art would recognize the claimed invention as
providing an improvement.” October 2019 Update, 12. If the Specification
sets forth an improvement in technology, we then evaluate claim 1 “to
ensure that the claim itself reflects the disclosed improvement.” Id.
The passage of the Specification that Appellant quotes generally
discusses aspects of Appellant’s invention, such as searching for anomalous
events in the events of the second time period after removing the event for
the each element. See, e.g., Specification filed Mar. 24, 2014 (“Spec.”) ¶ 50.
This passage, however, does not identify a problem in searching for
anomalous events. Nor does the quoted passage indicate achieving any
improvement by using the claimed method, as Appellant argues. Rather, the
passage states “The application of the method of FIG. 3 may reduce the
search necessary to detect anomalous events by removing events contained
in normal sequences.” Spec. ¶ 50 (emphasis added). In other words, the
quoted passage of Appellant’s Specification does not provide sufficient
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details such that one of ordinary skill in the art would recognize the claimed
invention as providing the improvement asserted by Appellant.
In the Reply Brief, Appellant asserts the Specification’s paragraph 21
demonstrates “performance of the claims cuts down the number of events
needed to be examined to see if they are anomalous events and potential
security risks. This is an improvement.” Reply Br. 13. Paragraph 21 states in
pertinent part “the process of removing normal sequences of events reduces
the instances of event C needing investigation from four to one.” Spec. ¶ 21.
Appellant acknowledges that “this winnowing may require more steps
elsewhere,” but argues that “check[ing] whether an event is anomalous may
be costly.” Reply Br. 13.
Furthermore, even if the Specification provided “sufficient details
such that one of ordinary skill in the art would recognize the claimed
invention as providing an improvement,” we find that claim 1 does not
reflect the improvement as Appellant asserts, namely an improvement to the
function of a computer through improved software. Appeal Br. 8. As noted
above, the Specification’s paragraphs 21 and 50 indicate removing events
contained in normal sequences may reduce the search necessary to detect
anomalous events. Spec. ¶¶ 21, 50. Claim 1 recites, for example, “removing
an event” and “searching for anomalous events in the events of the second
time period after removing the event for the each element.” Claim 1,
however, does not recite that the search necessary to detect anomalous
events is reduced.
As a result, Appellant’s arguments do not persuade us that the
invention of claim 1 provides an improvement that integrates the judicial
exception into a practical application of the exception.
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Claim 1 also recites “by an information handling system” for
performing the step of “classifying . . . events into event types” that claim 1
recites. Appeal Br. 16 (Claims Appendix). In the Reply Brief, Appellant
asserts that “[t]he use of a computer is thoroughly, necessarily integrated
with the other elements of the claims.” Reply Br. 12. To the extent this
limitation attempts to impose a meaningful limitation on the judicial
exception by generally linking the abstract idea to a particular technological
environment (e.g., a computer system), the “prohibition against patenting
abstract ideas ‘cannot be circumvented by attempting to limit the use of [the
abstract idea] to a particular technological environment.’” Bilski, 561 U.S. at
610 (quoting Diehr, 450 U.S. at 191–92).
In sum, we find that claim 1 does not integrate the judicial exception
into a practical application. Accordingly, claim 1 is directed to an abstract
idea.
3. Step 2B — Inventive Concept
Because claim 1 is directed to an abstract idea, we evaluate the
additional elements of the claim, individually and in combination, to
determine whether the claim provides an inventive concept (i.e., whether the
additional elements amount to significantly more than the exception itself).
See 2019 Revised Guidance, 84 Fed. Reg. at 56.
The Examiner concludes, and we agree, that the claims do not contain
any additional elements, individual or in combination, that amount to
significantly more than the abstract idea. Ans. 10.
When considered individually, the limitations “classifying . . . events
into event types,” “forming first sequences,” “forming second sequences,”
“matching a portion of sequences of the second sequences to sequences of
the first sequences,” “removing a third element from one of the match
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sequences of the second sequences,” and “searching for anomalous events”
relate to routine data gathering and organization, as discussed above,
because it is collected and organized by the information handling system.
Routine data-gathering steps, however, are “insufficient . . . to constitute an
inventive concept.” Solutran, Inc. v. Elavon, Inc., 931 F.3d 1161, 1169 (Fed.
Cir. 2019) (citations omitted).
As we explain above, claim 1 contains the additional element of “an
information handling system.” The limitation of “an information handling
system” is recited at a high level of generality. Ans. 9. The Specification
does not indicate that this component is anything other than generic
components performing generic computer functions. To the contrary, the
Specification demonstrates the conventional nature of this element. Spec.
¶ 14 (“a variety of information handling systems capable of communicating
over network 150 with sequence analyzer 128 include[s]: workstation 102, a
computer coupled to network 150 through wireline connection 122; personal
computer 108, coupled to network 150 through wireline connection 120;
personal digital assistant 112, coupled to network 150 through wireless
connection 114; laptop computer 126, coupled to network 150 through
wireless connection 118; cellular telephone 110, coupled to network 150
through wireless connection 116; and server 140 connected to network 150
through wireline connection 130.”). The combination with a generic
computer processor does not transform an abstract idea into patent-eligible
subject matter. FairWarningIP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1096
(Fed. Cir. 2016) (“the use of generic computer elements like a
microprocessor or user interface do not alone transform an otherwise
abstract idea into patent-eligible subject matter”).
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In summary, we have carefully considered Appellant’s arguments but
are not persuaded of reversible error in the Examiner’s § 101 rejection of
claim 1. Therefore, we affirm the Examiner’s rejection of claims 1, 4, 5, 7–9,
11, 12, and 24–29.
CONCLUSION
The Examiner’s rejection of claims 1, 4, 5, 7–9, 11, 12, and 24–29
under 35 U.S.C. § 101 is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 5, 7–9,
11, 12, 24–
29
101 Eligibility
1, 4, 5, 7–9,
11, 12, 24–
29

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).

AFFIRMED