Ex Parte Liu et al

Patent Trial and Appeal Board

Apr 12, 2018

13750742 (P.T.A.B. Apr. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
131750,742 01125/2013
20995 7590 04/16/2018
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
FIRST NAMED INVENTOR
Quentin Liu
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
DCERT.056Cl 1095
EXAMINER
DAVIS, ZACHARY A
ART UNIT PAPER NUMBER
2492
NOTIFICATION DATE DELIVERY MODE
04/16/2018 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):
j ayna.cartee@knobbe.com
efiling@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte QUENTIN LIU, MARC WILLIAMS, and
RICHARD F. ANDREWS
Appeal2017-009975
Application 13/750,742
Technology Center 2400
Before ALLEN R. MacDONALD, BETH Z. SHAW, and
DAVID J. CUTITTA II, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1, 3-11, and 13-20. Appellants cancelled claims 2 and 12. App. Br. 10, 14.
We have jurisdiction under 35 U.S.C. § 6(b ).
1 Appellants state the real party in interest for this appeal is Symantec
Corporation. App. Br. 2.
Appeal2017-009975
Application 13/750,742
Representative Claim
Representative claim 1 under appeal reads as follows (emphasis,
formatting, and brackets added).
1. A method comprising:
[A.] receiving, over a network, one or more certificate signing
requests;
[B.] extracting, by at least one computer processor, a first name
and a second name from an existing digital certificate stored in a
memory,
wherein extracting the first and second names comprises
extracting
[ i.] the first name from a Subject field of the existing
digital certificate and
[ii.] the second name from a SubjectAltName extension
of the existing digital certificate; and
[C.] in response to the receiving, provisioning, over the
network, by the at least one computer processor,
[ i.] a first digital certificate with the first name and
[ii.] a second digital certificate with the second name,
wherein the first name is stored in a Subject field of the first
digital certificate, and
wherein the second name is stored in a Subject field of the
second digital certificate.
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Rejection
The Examiner rejected claims 1, 3-11, and 13-20 under 35 U.S.C.
§ 101 "because the claimed invention is directed to non-statutory subject
matter" (Oct. 6, 2016 Final Act. 7), i.e., for being patent-ineligible subject
matter. 2
Issue on Appeal
Did the Examiner err in rejecting claim 1 for being directed to patent-
ineligible subject matter?
Appellants 'Admissions
1. Appellants state in their Background:
X.509 certificates, also referred to as digital certificates, are used
in a wide variety of applications. These digital certificates
provide a method to verify the identity of a user, are a component
of a secure communications channel, and deliver authentication
information based on these capabilities.
X.509 certificates are defined by the Telecommunication
Standardization Sector (ITU-T) of the International
Telecommunication Union (ITU) as part of the Directory
(X.500) series.
Spec. i-fi-1 2-3.
2. Appellants also state in their Background:
The structure of an X.509 v3 digital certificate is as follows:
• Certificate
o Version
o Serial Number
2 We select claim 1 as representative. Separate patentability, in compliance
with 37 C.F.R. § 41.37(c)(iv), is not argued for claims 3-11 and 13-20.
Except for our ultimate decision, we do not discuss the rejection of claims
3-11 and 13-20 further herein.
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Application 13/750,742
Spec. ,-r 4.
o Algorithm ID
o Issuer
o Validity
•Not Before
•Not After
o Subject
o Subject Public Key Info
• Public Key Algorithm
• Subject Public Key
o Issuer Unique Identifier (Optional)
o Subject Unique Identifier (Optional)
o Extensions (Optional)
•
• Certificate Signature Algorithm
• Certificate Signature
3. Appellants further state in his Background:
X.509 certificates bind the name of an entity in the real world,
such as a company "VeriSign," to a public key. The "Subject"
field of the certificate provides a location for storage of the name,
which is bound to the public key stored in the certificate. The
subject name is in the form of an X.500 or LDAP directory name
and is often identical to the entity's directory name, e.g., the fully
qualified domain name of the website: www.verisign.com ....
Many digital certificates contain only one name, which is stored
in the Subject field.
Starting with X.509 v3 certificates, the subject alternative
name extension was provided to allow identities to be bound to
the subject of the certificate. These identities may be included in
addition to or in place of the identity in the subject field of the
certificate. Defined.
Spec. i-fi-1 5---6 (emphasis added).
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Application 13/750,742
DEFINITIONS 3
Symantec
Digital certificate - A digital certificate is an electronic document
which confirms the identity of an entity- which could be a user, a server, a
company, a program on a client, just about anything - and associates that
entity with a public key. The digital certificate is the entity's identification
to the public key infrastructure. Each party to a TLS-secured
communication can evaluate the contents of the certificate. The most
examined field is the Common Name.
White Paper - Best Practices and Applications of TLS/SSL; Larry
Seltzer; Symantec; page 4; 2014.
https://www.symantec.com/ content/ en/us/ enterprise/white_papers/b-
best-practices-applications-of-tls-ssl_ WP. pdf. (Accessed 4/5/2018).
Wikipedia
Digital certificate -In cryptography, a public key certificate, also
known as a digital certificate or identity certificate, is an electronic
document used to prove the ownership of a public key. The certificate
includes information about the key, information about the identity of its
owner (called the subject), and the digital signature of an entity that has
verified the certificate's contents (called the issuer). If the signature is valid,
and the software examining the certificate trusts the issuer, then it can use
that key to communicate securely with the certificate's subject. In email
encryption, code signing, and e-signature systems, a certificate's subject is
typically a person or organization. However, in Transport Layer Security
3 Dictionary.com. Dictionary.com Unabridged. Random House, Inc.
http://www.dictionary.com (accessed: March 9, 2018).
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(TLS) a certificate's subject is typically a computer or other device, though
TLS certificates may identify organizations or individuals in addition to their
core role in identifying devices. TLS, sometimes called by its older name
Secure Sockets Layer (SSL), is notable for being a part of HTTPS, a
protocol for securely browsing the web.
The most common format for public key certificates is defined by
X.509. Because X.509 is very general, the format is further constrained by
profiles defined for certain use cases, such as Public Key Infrastructure
(X.509) as defined in RFC 5280.
https:// en. wikipedia.org/wiki/Public_key _certificate (accessed
4/2/2018).
Microsoft Press
Digital certificate -A user identity card or "driver's license" for
cyberspace. Issued by a certificate authority (CA), a digital certificate is an
electronic credential that authenticates a user on the Internet and intranets.
Digital certificates ensure the legitimate online transfer of confidential
information, money, or other sensitive materials by means of public
encryption technology. A digital certificate holder has two keys (strings of
numbers): a private key held only by the user, for "signing" outgoing
messages and decrypting incoming messages; and a public key, for use by
anyone, for encrypting data to send to a specific user. See also certificate
authority, encryption, private key, public key.
Microsoft Computer Dictionary.--5th ed.; page 158; 2002.
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ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments (Appeal Brief and Reply Brief) that the Examiner has erred. We
disagree with Appellants' conclusions and concur with the conclusions
reached by the Examiner. Except as noted below, we adopt as our own the
reasoning set forth by the Examiner in the Examiner's Answer. We
highlight the following points.
A. Section 101
Under 35 U.S.C. § 101, a patent may be obtained for "any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof." The Supreme Court has "long held that
this provision contains an important implicit exception: Laws of nature,
natural phenomena, and abstract ideas are not patentable." Alice Corp. v.
CLS Bankint'l, 134 S. Ct. 2347, 2354 (2014) (quotingAss'nfor Molecular
Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116 (2013)). The
Supreme Court in Alice reiterated the two-step framework previously set
forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132
S. Ct. 1289, 1300 (2012), "for distinguishing patents that claim laws of
nature, natural phenomena, and abstract ideas from those that claim patent-
eligible applications of these concepts." Alice, 134 S. Ct. at 2355. The first
step in that analysis is to "determine whether the claims at issue are directed
to one of those patent-ineligible concepts," such as an abstract idea. For
example, a fundamental economic practice is an abstract idea.
[In Bilski v. Kappas], the Court grounded its conclusion that all
of the claims at issue were abstract ideas in the understanding
that risk hedging was a " 'fundamental economic practice.' " 561
U.S., at 611, 130 S.Ct. 3218.
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Alice, 134 S. Ct. at 2357.
The Court acknowledged in Mayo that "all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural phenomena,
or abstract ideas." Mayo, 132 S. Ct. at 1293. We, therefore, look to whether
the claims focus on a specific means or method that improves the relevant
technology or are instead directed to a result or effect that itself is the
abstract idea and merely invoke generic processes and machinery. See
Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016). If
the claims are not directed to an abstract idea, the inquiry ends. Otherwise,
the inquiry proceeds to the second step where the elements of the claims are
considered "individually and 'as an ordered combination' to determine
whether the additional elements 'transform the nature of the claim' into a
patent-eligible application." Alice, 134 S. Ct. at 2355 (quoting Mayo, 132 S.
Ct. at 1298, 1297).
B. Alice/Mayo - Step 1
The Examiner concludes:
Claim 1 is directed to a method that only recites rece1vmg
requests, extracting names from a certificate, and provisioning
certificates. Extracting names from a certificate could be
performed entirely by a person and is an abstract step. Similarly,
provisioning new certificates is an abstract step because it merely
involves compiling and separating data. These are abstract
because they are directed to general methods of organizing
human activities and data. . .. Because the claims recite (i.e. set
forth or describe) abstract ideas of extracting names and
provisioning certificates, the claims are directed to abstract ideas
in the meaning of the subject matter eligibility test set forth in the
[2014] Interim Guidance [on Patent Subject Matter Eligibility]
(see section I.A. I).
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Final Act. 7.
1
a
Appellants contend claim 1 is not directed to an abstract idea because:
The Examiner has asserted that the claims are directed to
various abstract ideas, including "using categories to organize,
store, and transmit data" and "data recognition and storage"
(Office Action), or the "movement, manipulation, and
organization of data" (Advisory Action). However, while the
claims involve those general concepts, it is inappropriate to ask
whether claims "involve a patent-ineligible concept." Enfish,
LLC. v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016).
Instead, the appropriate inquiry is whether the claims as a whole
are directed to excluded subject matter. Id.
App. Br. 4 (emphasis added).
Appellants correctly point out that the Examiner has misstated the
holding in Enfzsh. However, Appellants then doubly misstate the Enfzsh
holding. Enfzsh does not state, "it is inappropriate to ask whether claims
'involve a patent-ineligible concept"' as argued by Appellants. App. Br. 4
(emphasis added). Rather, Enfish states "[t]he 'directed to' inquiry[] cannot
simply ask whether the claims involve a patent-ineligible concept." Enfzsh,
822 F.3d at 1335 (emphasis added). Also, Enfzsh does not state "the
appropriate inquiry is whether the claims as a whole are directed to
excluded subject matter"' as argued by Appellants. App. Br. 4 (emphasis
added). Rather, Enfzsh states "the 'directed to' inquiry applies a stage-one
filter to claims, considered in light of the specification, based on whether
'their character as a whole is directed to excluded subject matter."' Enfish,
822 F.3d at 1335 (emphasis added).
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Our review under Alice/Mayo step 1 looks to the character of claim 1
as a whole.
b
Appellants contend:
Claim 1 ... is directed to a specific method for splitting a
digital certificate. Because, in the claimed invention, the user
already has been verified and approved for possession of
certificates containing all of the requested names (in one
certificate), efficiency in the certificate splitting process can be
achieved while maintaining security without requiring a re-
verification of identity. See Specification as Filed at [0025],
[0013]-[0014].
App. Br. 4 (emphasis added).
Appellants also contend:
It is also inappropriate to oversimplify claims by "looking at
them generally and failing to account for the specific
requirements of the claims." See McRO, Inc. v. Bandai Namco
Games America, [837 F.3d 1299, 1313 (Fed. Cir. 2016)].
Here, the specific requirements of the claims have been
ignored. The claims are not directed to organizing and storing
data, or to manipulation of data, but rather to specific ways in
which data manipulation and storage may be used to achieve a
non-abstract goal - splitting a single digital certificate with
multiple names owned by a single entity into multiple certificates
with single names owned by that same entity, without needing
to re-verify or certify the identity of the entity and without
requiring repetitive requests. Rather than being directed to the
abstract idea of manipulating data, or even to an abstract idea of
splitting certificates if such were indeed abstract, which it is not,
the claims as a whole are directed to a specific transformation
achieving a new and useful result. Contrary to the Federal
Circuit's instructions in Enfish and McRO, the Examiner has
oversimplified the claims and looked at what they involve, rather
than what they are directed to as a whole, in order to find an
abstract idea. The claims are focused on a "specific means or
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method that improves the relevant technology," and not to a
result which is itself the abstract idea, and thus are not directed
to an abstract idea.
App. Br. 4--5 (emphasis added).
Appellants further contend:
Here . . . the Examiner has ignored the focus of the claimed
advance, which provides specific advantages and distinctions
over conventional certificate issuance, in order to assert that the
claims are directed to the automation of conventional activity. In
particular, the claims allow for a technique that enables providing
multiple separate certificates when a primary certificate with
multiple owners previously existed. Other such techniques
exist; but this particular technique provides a specific way to
achieve this result, and thus does not constitute an abstract idea.
App. Br. 5---6 (emphasis added).
Appellants further contend:
Similar to Enfzsh, the claimed invention provides a particular and
specific improvement (a particular set of rules for taking a source
certificate and provisioning multiple certificates from the source
certificate) to the way computers previously could be used to
provision multiple certificates. Further, similar to McRO, the
claimed invention uses a combined order of specific rules
(receiving a source certificate and extracting information from it
in specified ways) that renders information into a specific format
(first and second names) that is then used and applied to create
desired results (multiple provisioned certificates).
App. Br. 7 (emphasis added).
The Examiner responds:
Appellant does not specify what requirements of the claims are
alleged to have been ignored [and] ... does not specify what the
focus of the claimed advance is with reference to the claim
language[.] [R]ather, Appellant only states that "the claims
allow for a technique that enables providing multiple separate
certificates when a primary certificate with multiple owners
previously existed" and makes the conclusory statement that
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"this particular technique provides a specific way to achieve this
result, and thus does not constitute an abstract idea".
Ans. 2-3.
The Examiner further responds:
[F]irst, it is noted that in McRO, the rules were explicitly recited
as "rules" to be used in the claim, which is not equivalent to the
present claims, as the present claims do not explicitly recite any
"rules". Further, Appellant's summary of the claim, as rendering
information into a specific format (extracting names from the
certificates) and using that to create desired results of
provisioned certificates, again highlights the similarity to
gathering data (the names) from one collection of information
(the existing certificate) and then organizing the information into
a new form (using the data to result in the two new certificates),
which was identified as abstract in Digitech.
Ans. 4--5.
We are unpersuaded by Appellants' arguments. Contrary to
Appellants' assertion, we conclude the character of claim 1 as a whole is
"directed to general methods of organizing human activities and data" as the
Examiner concludes. Final Act. 7.
Contrary to the specific limitations argued by Appellants, we do not
find in claim 1 splitting a digital certificate "without needing to re-verify or
certify the identity of the entity and without requiring repetitive requests"
(App. Br. 5); or "specific rules" and "specific format" (App. Br. 7). The
argued negative limitation is simply not set forth as a requirement of claim
1; nor are specific rules or a specific format. At most, claim 1 sets forth
specific data (names) and a general format (Subject and SubjectAltName
fields) which Appellants have admitted are known in the prior art
(Appellants' admissions 1-3). Although Appellants repeatedly assert claim
1 is directed to a specific method, specific advantage; specific distinction,
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specific transformation, specific way; or specific improvement; we find no
such specifics in claim 1. Rather, we agree with the Examiner that these are
conclusory statements (Ans. 3) without sufficient support in Appellants'
arguments or claim 1.
C. Alice/Mayo - Step 2
Turning to the second part of the Alice/ Mayo analysis, the Examiner
concludes:
Although the claim recites that the operations are performed "by
a data processor", this constitutes, at most, mere instructions to
implement the abstract idea on a computer. It is noted that the
broadest interpretation of a "data processor" also encompasses a
person that processes data; however, even ifthe claim were more
explicitly limited to a computer, microprocessor, or other
hardware data processor performing the steps, this would still
constitute mere instructions to implement the abstract idea on a
computer. . . . The claims require no more than a generic
computer to perform generic computer functions that are well-
understood, routine, and conventional activities, namely
receiving and compiling data, and this does not add significantly
more to the abstract idea .... The step of receiving one or more
certificate signing requests is also a generic computer function
(i.e. receiving a request for processing to be performed). Further,
the limitations that the receiving and provisioning are performed
over a network merely amount to a link to a particular field of
use (i.e. computer networks) .... The additional steps, whether
considered individually or as an ordered combination, do not
amount to significantly more than the abstract idea, and
therefore, the claim as a whole is not directed to significantly
more than the abstract idea.
Final Act. 8.
Appellants contend:
The claims here are fundamentally tied to computer technology
as digital certificates for identity are fundamentally a technology
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that arose out of the need to provide secure identification
techniques in the online environment, a need which does not
exist in the same way in the physical world. The claims describe
a process by which the routine and conventional approach to
certificates, requiring one signing request per certificate desired,
is overridden and an improved process results. The claimed
invention is not merely directed to the routine and conventional
applied by a computer, but rather to a new way of using that
computer. As a result, the present claims are similar to those in
DDR Holdings and thus not simply directed to an abstract idea
but rather fundamentally tied to computer technology.
App. Br. 6 (emphasis added).
The Examiner responds:
[A] digital certificate is not a "technology". Rather, a digital
certificate is defined only as a set of certain data (usually
including, for example, an identity, issuer, public key, and issuer
signature on the other fields of the certificate) and is therefore
intangible as such, as noted with respect to Elec. Power Grp.
Ans. 4.
We are unpersuaded by Appellants' arguments. Symantec
Corporation (the Real Party in Interest for this appeal; App. Br. 2) states that
a digital certificate is an electronic document (above Definitions); and
Appellants admit that the known structure of an X.509 v3 digital certificate
includes a Subject and a subject alternative name extension (Appellants'
Admissions 1-3). Appellants' assert that the claim 1 digital certificate
process is an improvement of computer technology which provides secure
identification techniques in the online environment. We disagree. We
conclude that the claimed rearranging of the "existing digital certificate"
data so as to provision new first and second digital certificates does not
change or improve the actual computer technology which provides secure
identification techniques in the online environment. Our review finds
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neither the prior art secure identification techniques, which apply the digital
certificate, nor any new variation thereof are recited in claim 1. Rather,
claim 1 limits itself to merely splitting the contents of the existing electronic
document into new first and second documents. Although data content is
split, we do not find where claim 1 requires that the new documents be in
any other way different in format that the existing document.
Appellants also overlook that our reviewing court has cautioned
against Appellants' position in the DDR Holdings decision.
We caution, however, that not all claims purporting to address
Internet-centric challenges are eligible for patent. For example,
in our recently-decided Ultramercial opinion, the patentee
argued that its claims were "directed to a specific method of
advertising and content distribution that was previously
unknown and never employed on the Internet before." 772 F.3d
at 714. But this alone could not render its claims patent-eligible.
In particular, we found the claims to merely recite the abstract
idea of "offering media content in exchange for viewing an
advertisement," along with "routine additional steps such as
updating an activity log, requiring a request from the consumer
to view the ad, restrictions on public access, and use of the
Internet." Id. at 715-716.
DDR Holdings, LLC v. Hotels.com, L.P, 773 F.3d at 1258 (Fed. Cir. 2014).
The DDR Holdings decision required more from a "solution" before finding
a claim to be rooted in computer technology.
The '399 patent's claims are different enough in substance from
those in Ultramercial because they do not broadly and
generically claim "use of the Internet" to perform an abstract
business practice (with insignificant added activity). Unlike the
claims in Ultramercial, the claims at issue here specify how
interactions with the Internet are manipulated to yield a desired
result-a result that overrides the routine and conventional
sequence of events ordinarily triggered by the click of a
hyperlink. Instead of the computer network operating in its
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normal, expected manner by sending the website visitor to the
third-party website that appears to be connected with the clicked
advertisement, the claimed system generates and directs the
visitor to the above-described hybrid web page that presents
product information from the third-party and visual "look and
feel" elements from the host website. When the limitations of
the '399 patent's asserted claims are taken together as an ordered
combination, the claims recite an invention that is not merely
the routine or conventional use of the Internet.
773 F.3d at 1258-59 (emphasis added). In other words, the claimed
invention in DDR Holdings did not merely use the Internet but rather
changed how interactions on the Internet operated.
D. Other 101 Arguments
1
Appellants contend claim 1 "does not pre-empt the field of certificate
splitting." App. Br. 7 (emphasis added). Appellants' pre-emption argument
overlooks that the Court's Alice two-step (abstract idea/ significantly more)
analysis is the Court's framework for determining pre-emption.
[W]e set forth a framework for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from those
that claim patent-eligible applications of those concepts.
Alice, 134 S. Ct. at 2355. Contrary to Appellants' argument, the Examiner
applied this Alice framework in the Final Action.
2
Appellants also contend as to claim 1 :
[T]he limitations of claim 1 represent significantly more than the
abstract idea, as the functionality is not well-understood, routine,
and conventional (as evidenced by the lack of any prior art cited
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by the Examiner disclosing or rendering obvious the claimed
invention).
App. Br. 9 (emphasis added).
We are not persuaded by Appellants' argument. Although the second
step in the Alice/ Mayo analysis includes a search for an inventive concept,
the analysis is not an evaluation of novelty or nonobviousness, but rather, a
search for "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."' Alice, 134 S. Ct. at 2355 (quoting
Mayo, 132 S. Ct. at 1294). A novel and nonobvious claim directed to a
purely abstract idea is, nonetheless, patent-ineligible. See Mayo, 132 S. Ct.
at 1304 (rejecting the suggestion that Sections 102, 103, and 112 might
perform the appropriate screening function and noting that in Mayo such an
approach "would make the 'law of nature' exception ... a dead letter").
Further, "under the Mayo/Alice framework, a claim directed to a newly
discovered law of nature (or natural phenomenon or abstract idea) cannot
rely on the novelty of that discovery for the inventive concept necessary for
patent eligibility." Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369,
1376 (Fed. Cir. 2016).
CONCLUSION
(1) The Examiner has not erred in rejecting claims 1, 3-11, and 13-
20 under 35 U.S.C. § 101, as being directed to patent-ineligible subject
matter.
(2) Claims 1, 3-11, and 13-20 are not patentable.
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DECISION
We affirm the Examiner's rejection of claims 1, 3-11, and 13-20.
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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