Ex Parte Hadar

Patent Trial and Appeal Board

May 31, 2017

13623721 (P.T.A.B. May. 31, 2017)

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.
13/623,721 09/20/2012 Eitan HADAR 063170.9783 7697
106095 7590 06/02/2017
Baker Botts LLP/CA Technologies
2001 Ross Avenue
SUITE 700
Dallas, TX 75201
EXAMINER
ZIMMERMAN, JEFFREY P
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
06/02/2017 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):
PTOmaill @bakerbotts.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EITAN HADAR
Appeal 2016-001399
Application 13/623,7211
Technology Center 3600
Before JASON V. MORGAN, HUNG H. BUI, and AMBER L. HAGY,
Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s Final Office Action rejecting claims 1—7, 9—13, 15—19, and 21—
23, all of which are pending on appeal. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.2
1 According to Appellant, the real party in interest is CA, Inc., App. Br. 2.
2 Our Decision refers to Appellant’s Appeal Brief filed June 25, 2015
(“App. Br.”); Examiner’s Answer mailed November 9, 2015 (“Ans.”); Final
Office Action mailed December 18, 2014 (“Final Act.”); and original
Specification filed September 20, 2012 (“Spec.”).
Appeal 2016-001399
Application 13/623,721
STATEMENT OF THE CASE
Appellant’s invention relates to “a system and method for proactive
optimization of self-activated services [provided to a consumer].” Spec. 11.
According to Appellant,
“the service may comprise, for example, one or more data
serving; network access; request management; self provisioning
of a server, such as Amazon Elastic Compute Cloud™ (“Amazon
EC2™”); self-archiving; and other IT services.”
Id. 131. In addition, one or more quality attributes of the service may be
defined by the service provider or the consumer, as including, for example:
one or more of a particular availability attribute that indicates an
availability of the service over a given time period (e.g.. a
99.99% availability over a one month period), a cost associated
with the service (e.g., service costs, associated maintenance
costs, facilities costs), a bandwidth of the service, a storage
capacity associated with the service ... an attribute associated
with a load on the service, and other attributes that may he
associated with the service.
Id. (italics added for emphasis). Service can be optimized, via an
optimization policy specified by the consumer, as including, for example:
one or more of a preference for reducing cost while maintaining
service quality, a preference for increasing availability of the
service without incurring additional costs greater than a defined
threshold cost, a preference for increasing bandwidth without
incurring additional costs greater than a defined threshold cost, a
preference for increasing storage space without incurring
additional costs greater than a defined threshold cost, and a
preference for decreasing costs without decreasing the value of
other quality attributes below certain minimum levels.
Id. 132 (emphases added).
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Application 13/623,721
Claims 1, 9, and 15 are independent. Claim 1 is illustrative of
Appellant’s invention, as reproduced below with disputed limitations in
italics:
1. A method comprising:
monitoring a plurality of services provided to a plurality
of consumers;
determining an actual quality attribute of a particular
service of the plurality of services provided to a particular
consumer of the plurality of consumers based on at least one
monitored parameter of the particular service;
determining a potential action preference for the
particular consumer based on a history of activation of each of
the plurality of services by other consumers of the plurality of
consumers that previously activated the particular service, the
potential action preference defining a specific criterion to be
satisfied before a particular action is activated;
determining, by one or more processors instructed by
computer-readable instructions stored in storage media
structured to store such computer-readable instructions, a
potential quality attribute of an alternative service of the
plurality of services based on statistical data sets including
particular data for each consumer of the plurality of consumers
that has implemented a change from the particular service to the
alternative service, the particular data for each such consumer
derived from at least one monitored parameter of the alternative
service provided to such consumer, and the potential quality
attribute of the alternative service corresponding to an overall
service metric indication of aggregated metrics associated with
the at least one monitored parameter of the alternative service
provided to each consumer of the plurality of consumers that has
implemented the change from the particular service to the
alternative service',
determining a difference between the potential quality
attribute of the alternative service and the actual quality attribute
of the particular service provided to the consumer; and
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performing the particular action according to the potential
action preference in response to determining that the difference
between the potential quality attribute and the actual quality
attribute satisfies the specific criterion defined in the potential
action preference.
App. Br. 29 (Claims App.).
Examiner’s Rejections and References
(1) Claims 1—7, 9—13, 15—19, and 21—23 stand rejected under
35 U.S.C. § 101 because the claimed invention is directed to non-statutory
subject matter. Final Act. 3—5.
(2) Claims 1—3, 6, 9, 10, 15, 16, and 21 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Satyavolu et al. (US 2010/
0185453 Al; published July 22, 2010 (hereinafter “Satyavolu”)), Paleja et
al. (US 8,468,164 Bl; issued June 18, 2013 (hereinafter “Paleja”)), D’Souza
et al. (US 7,986,935 Bl; issued July 26, 2011 (hereinafter “D’Souza”)), and
Brolley et al. (US 8,595,626 B2; issued Nov. 26, 2013 (hereinafter
“Brolley”)). Id. at 5-21.
(3) Claims 4, 5, 11—13, and 17—19 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Satyavolu, Paleja, D’Souza, Brolley,
and Carothers et al. (US 2002/0069117 Al; published June 6, 2002
(hereinafter “Carothers”)). Id. at 22—30.
(4) Claims 22 and 23 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Satyavolu, Paleja, D’Souza, Brolley, “Though
Leaders in Cloud Computing: Donald Ferguson, CTO of CA Technologies”
by Sramana Mitra (“Mitra”); and Goad et al. (US 2011/0137776 Al;
published June 9, 2011 (hereinafter “Goad”)). Id. at 30-34.
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(5) Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Satyavolu, Paleja, D’Souza, Brolley, and Mitra. Id. at 35—
36.
ANALYSIS
35 U.S.C. § 101: Claims 1-7, 9 13, 15 19, and21-23
With respect to independent method claim 1, and similarly, system
claim 9 and “computer-readable medium” claim 15, the Examiner finds
these claims are directed to an abstract idea of “organizing activities as well
as mathematical relationships/formulas, i.e., gathering data, comparing data
attributes, and performing actions based on such comparison.” Final Act. 3.
According to the Examiner, all the steps recited in Appellant’s claim 1 can
be seen as “mental steps” or can be performed by a person with a pen and
paper. Ans. 3^4.
The Examiner also finds elements or combination of elements recited
in Appellant’s claim 1 do not amount to significantly more than an abstract
idea itself because Appellant’s claim “requires no more than a generic
computer to perform generic computer functions that are well-understood,
routine and conventional activities previously known to the industry.” Final
Act. 4; see also Alice Corp. Pty. Ltd. v. CLSBankInt’l, 134 S. Ct. 2347,
2355 (2014). App. Br. 3^4. According to the Examiner, “there is nothing
unconventional about Appellant’s claimed process of gathering data,
comparing data attributes, and performing actions based on such
comparison.” Ans. 5.
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Appellant argues “claim 1 is not directed to any abstract idea” and
instead
is directed to the patent-eligible ideas of at least “monitoring a
plurality of services,” “determining an actual quality attribute of
a particular service,” “determining a potential action preference
for the particular consumer based on a history of activation of
each of the plurality of services,” “determining ... a potential
quality attribute of an alternative service of the plurality of
services based on statistical data sets,” “determining a difference
between the potential quality attribute of the alternative service
and the actual quality attribute of the particular service,” and
“performing the particular action according to the potential
action preference.”
App. Br. 14.
Appellant also argues “the combination of elements recited in
independent claim 1 represent precisely the type of meaningful limitations
required by Alice Corp” and “limitations [recited in claim 1 ] are not well-
understood or routine in the field.” Id. at 16. In addition, Appellant argues
“the recited combination of elements [i.e., “one or more processors” and
“system” recited] in claims 9 and 15 amount to ‘significantly more’ than the
abstract idea itself and are thus directed to patent-eligible subject matter.”
Id. at 17.
We do not find Appellant’s arguments persuasive. At the outset, we
note the Supreme Court has long held that “[l]aws of nature, natural
phenomena, and abstract ideas are not patentable.” Alice, 134 S. Ct. at 2354
(quoting Assoc, for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct.
2107, 2116 (2013)). The “abstract ideas” category embodies the
longstanding rule that an idea, by itself, is not patentable. Id. at 2355
(quoting Gottschalkv. Benson, 409 U.S. 63, 67 (1972)).
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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 2355 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 132 S. Ct. 1289, 1296—97 (2012)). 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. If the claims are
directed to a patent-ineligible concept, the second step in the analysis is to
consider the elements of the claims “individually and ‘as an ordered
combination’” to determine whether there are additional elements that
“‘transform the nature of the claim’ into a patent-eligible application.” Id.
(quoting Mayo, 132 S. Ct. at 1297). In other words, the second step is to
“search for an ‘inventive concept’—i.e., an element or combination of
elements that is ‘sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept] itself.’” Id.
(alteration in original) (quoting Mayo, 132 S. Ct. at 1294). The prohibition
against patenting an abstract idea “cannot be circumvented by attempting to
limit the use of the formula to a particular technological environment’ or
adding ‘insignificant postsolution activity.’” Bilski v. Kappos, 561 U.S. 593,
610—11 (2010) (quoting Diamond v. Diehr, 450 U.S. 175 (1981)).
Turning to the first step of the Alice inquiry, we agree with the
Examiner that Appellant’s method claim 1 is directed to an abstract idea of
“gathering data, comparing data attributes, and performing actions based on
such comparison.” Final Act. 3; Ans. 4. All the steps recited in Appellant’s
claims 1 and 15 including, for example: (i) “monitoring a plurality of
services,” (ii) “determining an actual quality attribute of a particular
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service,” (iii) “determining a potential action preference for the particular
consumer based on a history of activation of each of the plurality of
services,” (iv) “determining ... a potential quality attribute of an alternative
service of the plurality of services based on statistical data sets,”
(v) “determining a difference between the potential quality attribute of the
alternative service and the actual quality attribute of the particular service,”
and (vi) “performing the particular action according to the potential action
preference” are considered abstract processes of gathering data, comparing
data attributes, and performing actions based on such comparison. System
claim 9 recites similar limitations of claims 1 and 15 in the context of
generic components such as (i) “a monitoring device,” (ii) “an action
preference-receiving device,” (iii) “a comparing device,” and (iv) “an action­
performing device” to process the recited functions.
Nevertheless, information as such is intangible. See Microsoft Corp.
v. AT&T Corp., 550 U.S. 437, 451 n.12 (2007). Information collection and
analysis, including when limited to particular content, is within the realm of
abstract ideas. See, e.g., Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d
1350, 1353 (Fed. Cir. 2016) (holding that “collecting information, analyzing
it, and displaying certain results of the collection and analysis” are “a
familiar class of claims ‘directed to’ a patent-ineligible concept”);
FairWarningIP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093—94 (Fed. Cir.
2016); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1349
(Fed. Cir. 2015); Digitech Image Techs., LLC v. Flees, for Imaging, Inc.,
758 F.3d 1344, 1351 (Fed. Cir. 2014); CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011).
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Turning to the second step of the Alice inquiry, we find nothing in
Appellant’s claims 1 and 15 and its corresponding system claim 9 that adds
anything “significantly more” to transform the abstract concept of “gathering
data, comparing data attributes, and performing actions based on such
comparison” into a patent-eligible application. Alice, 134 S. Ct. at 2357.
Appellant does not argue each of the steps recited in method claims 1 and 15
or elements of corresponding system claim 9 are individually inventive.
None of Appellant’s arguments show that some inventive concept arises
from the ordered combination of these steps, which, even if true, would be
unpersuasive given that they are ordinary steps in data analysis/comparison
and that they are recited in an ordinary order. Instead, Appellant’s method
claim 1 and “computer medium” claim 15 simply recite “gathering data,
comparing data attributes, and performing actions based on such
comparison” as correctly recognized by the Examiner. Ans. 4. Likewise,
system claim 9 simply incorporates generic components to perform the
abstract concept of “gathering data, comparing data attributes, and
performing actions based on such comparison.” Id.
As recognized by the Federal Circuit in Ultramercial, Inc. v. Hulu,
LLC, 772 F.3d 709, 716 (Fed. Cir. 2014), Bilski’s “machine-or-
transformation” (MoT) test can also provide a “useful clue” in the second
step of the Alice framework. See In re Bilski,3 545 F.3d 943, 954 (Fed. Cir.
3 In In re Bilski, the Federal Circuit adopted a “machine-or-transformation”
(MoT) test to determine whether a process claim is eligible under 35 U.S.C.
§101. However, the Supreme Court held, in Bilski v. Kappos, 130 S. Ct.
3218, 3227 (2010), that the “MoT” test, while a “useful and important clue,”
is no longer the sole test for determining the patent-eligibility of process
claims under § 101. Since Bilski v. Kappos, the Supreme Court has created a
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2008) (en banc). Under Bilski’s MoT test, a claimed process can be
considered patent-eligible under § 101 if: (1) “it is tied to a particular
machine or apparatus”; or (2) “it transforms a particular article into a
different state or thing.” In re Bilski, 545 F.3d at 954 (citing Gottschalk, 409
U.S. at 70, 93 S. Ct. 253). However, Appellant’s claims 1 and 15 and its
corresponding system claim 9 are neither sufficiently “tied to a particular
machine or apparatus” nor involved in any type of transformation of any
particular article.* * 4
Limiting such an abstract concept of “gathering data, comparing data
attributes, and performing actions based on such comparison” to generic
components such as (i) “a monitoring device”, (ii) “an action preference­
receiving device,” (iii) “a comparing device,” and (iv) “an action-performing
device” recited in Appellant’s system claim 9, or to instructions embodied
on a computer readable storage medium such as that recited in claim 15,
does not make the abstract concept patent-eligible under 35 U.S.C. § 101.
Ans. 4. As recognized by the Supreme Court, “the mere recitation of a
generic computer cannot transform a patent-ineligible abstract idea into a
patent-eligible invention.” See Alice, 134 S. Ct. at 2359 (concluding claims
“simply instruct[ing] the practitioner to implement the abstract idea of
intermediated settlement on a generic computer” not patent eligible); see
also Ultramercial, 772 F.3d at 715—16 (claims merely reciting abstract idea
of using advertising as currency as applied to particular technological
two-step framework in Alice to address whether a claim falls outside of
§101, which we discuss infra.
4 Alice also confirmed that if a patent’s systems claims are no different in
substance from its method claims, they will rise and fall together. Alice, 134
S. Ct. at 2360. The same was true of the Alice patent’s media claims. Id.
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environment of the Internet not patent eligible); Accenture Global Servs.,
GmbHv. Guidewire Software, Inc., 728 F.3d 1336, 1344-45 (Fed. Cir.
2013) (claims reciting “generalized software components arranged to
implement an abstract concept [of generating insurance-policy-related tasks
based on rules to be completed upon the occurrence of an event] on a
computer” not patent eligible); Dealertrack, Inc. v. Huber, 674 F.3d 1315,
1333—34 (Fed. Cir. 2012) (“Simply adding a ‘computer aided’ limitation to a
claim covering an abstract concept, without more, is insufficient to render
[a] claim patent eligible.”).
Lastly, we note Appellant’s claims 1, 9, and 15 are neither deeply
rooted in computer technology as outlined in DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014), nor do they seek to
improve any type of computer capabilities, such as a “self-referential table
for a computer database” outlined in Enflsh, LLC v. Microsoft Corp., 822
F.3d 1327, 1336—37 (Fed. Cir. 2016). As further recognized by the
Examiner, the steps recited in Appellant’s claims 1 and 15 can be seen as
“mental steps” or can be performed by a person with a pen and paper. Ans.
3^4.
Because Appellant’s claims 1, 9, and 15 are directed to a patent-
ineligible abstract concept and do not recite something “significantly more”
under the second prong of the Alice analysis, we sustain the Examiner’s
rejection of these claims as well as respective dependent claims
2—7, 10-13, 16—19, and 21—23 under 35 U.S.C. § 101 as being directed to
non-statutory subject matter in light of Alice and its progeny.
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35 U.S.C. § 103(a): Claims 1—7, 9 13, 15—19, and 21—23
In support of the obviousness rejection of method claim 1, and
similarly, system claim 9 and “computer-readable medium” claim 15, the
Examiner finds Satyavolu teaches most of the limitations, including:
(1) “[mjonitoring a plurality of services provided to a
plurality of consumers” (Final Act. 6 (citing Satyavolu 19));
(2) “[determining an actual quality attribute of a particular
service of the plurality of services provided to a particular consumer .
. . based on at least one monitored parameter of the particular service”
{id. (citing Satyavolu 19));
(3) “[djetermining a difference between the potential quality
attribute of the alternative service and the actual quality attribute of
the particular service provided to the consumer” {id. (citing Satyavolu
119, 45)); and
(4) “[performing the particular action according to the
potential action preference in response to . . . the difference ...” {id. at
6—7 (citing Satyavolu H 7, 9, 45)).
To support the conclusion of obviousness, the Examiner relies on
Paleja, D’Souza, and Brolley for teaching additional refinement features that
are well-known and recognized by those skilled in the art. Id. at 7—9. For
example, the Examiner finds:
(1) Palej a teaches the feature of “determining a potential
action preference for a particular consumer based on a history of
activation of each of the plurality of services by other consumers . . .
that previously activated the particular service” {id. at 7 (emphasis
added) (citing Paleja 12—13, Fig. 3B));
(2) D’Souza teaches the feature of “determining ... a
potential quality attribute of an alternative service of the plurality of
services based on statistical data sets including particular data for
each consumer of the plurality of consumers that has implemented a
change from the particular service to the alternative service” {id. at 7—
8 (emphasis added) (citing D’Souza 9:59—65, 10:11—11:28)); and
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(3) Brolley teaches “the potential quality attribute of the
alternative service corresponding to an overall service metric
indication of aggregated metrics associated with the at least one
monitored parameter of the alternative service provided to each
consumer . . . that has implemented the change from the particular
service to the alternative service.” {id. at 8 (emphasis added) (citing
Brolley, claims 1, 19—29)).
Appellant does not dispute the Examiner’s factual findings regarding
Satyavolu. Instead, Appellant disputes the Examiner’s factual findings
regarding Paleja, D’Souza, and Brolley. App. Br. 20-26. For example,
Appellant acknowledges Paleja teaches generating a recommendation for a
user based on usage and interactions of related users (i.e., usage frequency,
usage times, usage locations, combinations of the same, and the like). Id. at
21—23 (citing Paleja 12:41—50). However, Appellant argues Paleja “fails to
disclose or suggest that such users previously activated the same service as
the particular user receiving the recommendation” and, as such, “fails to
disclose or suggest ‘determining a potential action preference for the
particular consumer based on a history of activation of each of the plurality
of services by other consumers of the plurality of consumers that previously
activated the particular service,’ as set forth in independent claims 1, 9, and
15.” Id. at 22.
Appellant also acknowledges Brolley and D’Souza teach a similar
recommendation system based on usage data as disclosed by Paleja. Id. at
23-25 (citing Brolley 2:21^10, 5:41-61, 7:19-29; D’Souza 9:59-65, 10:62-
11:28). However, Appellant argues Brolley’s data collection is “based upon
the application to which certain users, among a group of users using a
certain category of application, switched [between applications]” but “the
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users within the monitored group use the same category of application,
rather than the same application” and, as such,
fails to disclose or suggest that “the potential quality attribute of
the alternative service correspond^ to an overall service metric
indication of aggregated metrics associated with the at least one
monitored parameter . . . that has implemented the change from
the particular service [currently being used by the particular
consumer] to the alternative service,” as set forth in independent
claims 1, 9, and 15.
Id. at 24 (alterations in original).
Likewise, Appellant argues D’Souza “merely describes providing
information to a particular user about service plans chosen by other users
with usage patterns similar to the usage pattern of the particular user” and, as
such,
fails to disclose or suggest at least “determining ... a potential
quality attribute of an alternative service of the plurality of
services based on . . . particular data for each consumer . . . that
has implemented a change from the particular service,” as set
forth in independent claims 1,9, and 15.
Id. at 25—26.
We do not find Appellant’s arguments persuasive. Instead, we find
the Examiner has provided a comprehensive response to Appellant’s
arguments supported by a preponderance of evidence. Ans. 7—10. As such,
we adopt the Examiner’s findings and explanations provided therein. Id.
For example, when Paleja’s system is accessed by a user, the service is
considered “activated” based on the application, and the recommendation is
made based on a history of “service” usage and interactions of other users
who have previously “activated” the service provided by Paleja’s system.
Id. at 7. As correctly recognized by the Examiner, “such a process” is
considered as Appellant’s claimed “determining a potential action
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preference for the particular consumer based on a history of activation of
each of the plurality of services by other consumers . . . that previously
activated the particular service,” as recited in claims 1, 9, and 15.
Similarly, when Brolley’s recommendation is generated to a user to
switch from using application A to application B based on usage metric data,
“such a process” is also considered as Appellant’s claimed “the potential
quality attribute of the alternative service corresponding to an overall service
metric indication of aggregated metrics associated with the at least one
monitored parameter correspond the alternative service provided to each
consumer . . . that has implemented the change from the particular service,”
as recited in claims 1, 9, and 15. Ans. 8—9 (citing Brolley 6:60-7:29, Figs.
3A—3B). Likewise, D’Souza’s recommendation is generated, via a service
plan optimizer, based on comparison of a current service plan and available
service plans based on usage data. See Spec., Abstract. As recognized by
the Examiner, service plan costs and savings are reported, including “a
potential quality attribute based on each consumer that has changed from the
particular service to the alternative service” as recited in Appellant’s claims
1, 9, and 15.
For the reasons set forth above, Appellant has not persuaded us of
Examiner error. Accordingly, we sustain the Examiner’s obviousness
rejection of independent claims 1, 9, and 15, and dependent claims 2—7, 10-
13, 16—19, and 21—23, which Appellant does not argue separately. App. Br.
27.
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CONCLUSION
On the record before us, we conclude Appellant has not demonstrated
the Examiner erred in rejecting claims 1—7, 9—13, 15—19, and 21—23 under
35 U.S.C. §§ 101 and 103(a).
DECISION
As such, we AFFIRM the Examiner’s final rejection of claims 1—7, 9—
13, 15-19, and 21-23.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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