Ex Parte Sherwood et al

Patent Trial and Appeal Board

Sep 28, 2017

13906056 (P.T.A.B. Sep. 28, 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.
13/906,056 05/30/2013 David Sherwood GB920120061US1 6242
109773 7590
Roy W. Truelson
Registered Patent Attorney
558 21st Street NE
Rochester, MN 55906
09/28/2017 EXAMINER
CALDWELL, ANDREW T
ART UNIT PAPER NUMBER
2182
MAIL DATE DELIVERY MODE
09/28/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID SHERWOOD, JAMES WILLIAM WALKER, and
TRAVIS WALTON
Appeal 2017-006552
Application 13/906,05 61
Technology Center 2100
Before JOSEPH L. DIXON, MARC S. HOFF, and JASON M. REPKO,
Administrative Patent Judges.
HOFF, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a Final Rejection of
claims 21—40. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Appellants’ invention is an apparatus, method, and computer program
product for producing random digital data. Responsive to a request for
random data, an entropy manager determines whether a higher level of
entropy is required by a consuming entity, by analyzing one or more events
in accordance with one or more rules. Responsive to a determination that a
1 The real party in interest is International Business Machines Corporation.
App. Br. 2.
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Application 13/906,056
higher level of entropy is not required, the entropy manager sets an entropy
state to a lower level and obtains random data from an entropy source having
a lower level of entropy. Responsive to a determination that a higher level
of entropy is required, the entropy manager switches the entropy state to a
higher level and obtains random data from an entropy source having a higher
level of entropy. See Abstract.
Claim 21 is exemplary of the claims on appeal:
21. A digital data apparatus for producing random digital
data, comprising:
at least one physical processor;
a physical system memory;
a plurality of entropy sources each generating respective
random source digital data having a corresponding level of
entropy, including a first entropy source generating random
source digital data having a first level of entropy, and a second
entropy source generating random source digital data having a
second level of entropy lower than said first level of entropy, said
second entropy source being independent of said first entropy
source;
a random number generator embodied as computer
program code storable in said physical system memory and
executable on said at least one physical processor, said random
number generator receiving input from each said plurality of
entropy sources, said random number generator generating a
random digital data output by a deterministic algorithm using
input from a selective one of said plurality of entropy sources as
a seed for said deterministic algorithm;
an entropy manager embodied as computer program code
storable in said physical system memory and executable on said
at least one physical processor, wherein said entropy manager
automatically selects one entropy source among said plurality of
entropy sources as input for the seed for said deterministic
algorithm used by said random number generator, said entropy
manager automatically selecting one entropy source among said
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plurality of entropy sources by determining a minimum level of
entropy required by a consuming entity from among multiple
possible minimum levels of entropy required, wherein the
consuming entity consumes random digital data output by said
random number generator to perform at least one data processing
function, wherein the minimum level of entropy required by the
consuming entity is a minimum level required as input for the
seed for said random number generator to produce the random
digital data output consumed by the consuming entity, said
entropy manager further automatically selecting an entropy
source from among said plurality of entropy sources having the
lowest corresponding level of entropy which meets said
minimum level of entropy required by the consuming entity.
The Examiner relies upon the following prior art in rejecting2 the
claims on appeal:
Claims 21—40 stand rejected under 35U.S.C. § 101 as being directed
toineligible subject matter.
Claims 21—23, 26—30, 33—36, 39, and 40 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Zhang and Rose.
Claims 24, 25, 31, 32, 37, and 38 rejected under 35 U.S.C. § 103(a) as
being unpatentable over Zhang, Rose, and Herbert.
Throughout this Decision, we make reference to the Appeal Brief
(“App. Br.,” filed Oct. 3, 2016) and the Examiner’s Answer (“Ans.,” mailed
Jan. 30, 2017) for their respective details.
2 The Examiner has withdrawn the § 112, first paragraph, rejection of claim
40. Ans. 2.
Rose
Zhang
Herbert
US 2008/0263117 A1
US 2010/0002877 A1
US 2010/0332574 A1
Oct. 23, 2008
Jan. 7, 2010
Dec. 30, 2010
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Application 13/906,056
ISSUES
1. Are the claims directed to patent-eligible subject matter?
2. Does the combination of Zhang and Rose disclose or suggest
determining a minimum level of entropy required by a consuming entity
from among multiple possible minimum levels of entropy required?
Principles of Law
The Supreme Court
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. First, . . .
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. ... If so, we then ask, “[w]hat
else is there in the claims before us?” ... To answer that question,
... consider the elements of each claim both individually and “as
an ordered combination” to determine whether the additional
elements “transform the nature of the claim” into a patent-
eligible application. . . . [The Court] described step two of this
analysis as a 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.”
Alice Corp. Pty. Ltd. v. CLS Bank Inti, 134 S. Ct. 2347, 2355 (2014)
(citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66
(2012)).
ANALYSIS
§ 101 Rejection
Applying Alice step one, the Examiner first finds that the claimed
invention is drawn to an abstract idea, i.e., “apparatuses, methods, and
computer program products which perform mathematical steps. . . .
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[Ejntropy information is gathered in the form of binary numbers and is
manipulated mathematically to generate random data, which is also
represented in binary.” Ans. 3.
Applying step two of the Alice analysis, the Examiner finds that the
limitations beyond the abstract mathematical steps are merely elements
found in a general purpose computer. Id. The Examiner characterizes the
claimed “entropy manager” as “merely code stored in the memory and used
to perform certain steps in the mathematical algorithm.” Similarly, “entropy
sources” are regarded as “merely the sources used to generate numbers,” and
the claimed “random number generator” is described as “merely code and
hardware used to generate further numerical information using the entropy
data.” Id.
The Examiner criticizes Appellants’ argument concerning alleged
improvement to a computer system, stating that Appellants never define
“certain less essential purposes” for which “relatively lower entropy data”
would be appropriate. Ans. 4.
We conclude that the Examiner erred in rejecting the claims as
directed to non-statutory subject matter. We agree with Appellants that the
Examiner has overgeneralized the claimed invention by summarizing it as
the mere performance of mathematical steps, or as information gathered in
the form of binary numbers that is manipulated mathematically to generate
random data. See App. Br. 11; Ans. 3.
Appellants’ claimed invention is directed to generating random digital
data for use by a consuming entity. For certain purposes, e.g., strong
encryption, random data having higher entropy is required; for other
purposes, lower entropy (and thus quicker to gather) random data will
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suffice. See Spec. 1—3. In the invention, an entropy manager determines the
minimum level of entropy required by a consuming entity, and selects the
random data (i.e., entropy) source that supplies random data having a
requisite level of entropy for the consuming entity’s purposes.
We do agree generally with the Examiner’s conclusion that
Appellants’ claimed invention is drawn to an abstract idea. The claims
under appeal are drawn to method and apparatus for producing random
digital data, including a random number generator for generating said
random digital data by following a deterministic algorithm using input from
one of a plurality of entropy sources as a seed.
Appellants persuade us, however, that the claims are, nonetheless,
statutory under the second prong of the Alice analysis. Representative claim
21 recites, inter alia, an entropy manager that “automatically selects one
entropy source” from among a plurality, as the seed for the deterministic
algorithm. The entropy manager makes this selection “by determining a
minimum level of entropy required by a consuming entity . . . the minimum
level of entropy required by the consuming entity is a minimum level
required as input for the seed for said random number generator . . . said
entropy manager further automatically selecting an entropy source from
among said plurality of entropy sources having the lowest corresponding
level of entropy which meets said minimum level of entropy required by the
consuming entity.”
In support, Appellants’ Specification discloses that “[h]igh-entropy
data is difficult for a computer to generate,” and even if one resorts to
techniques such as monitoring network traffic, “it takes time in order to
gather such random data.” Spec. 10. Appellants’ invention, thus, sets forth
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a system that automatically balances the tradeoff between (a) high entropy,
hard to predict (and thus hard to attack) data that is scarce, time-consuming
to produce, or both, and (b) lower entropy, less difficult to predict (but less
secure) data that is easier to gather, less computationally intensive to
produce, or both. See Spec. 9-10.
We conclude that the function of the entropy manager in the claimed
invention results in claims drawn to significantly more than an abstract idea.
See Alice, 134 S. Ct. at 2355. Like the animation method in McRO Inc. v.
Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016), we
conclude that the claims under appeal are limited to rules with specific
characteristics. McRO, 837 F.3d at 1314—15. Like the self-referential
logical table in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir.
2016), we conclude that the appealed claims focus on a specific means or
method that improves the relevant technology. See Enfish, 822 F.3d at 1335.
Here, Appellants’ invention focuses on a specific method of providing an
entropy manager to make a decision concerning the appropriate entropy
level to be employed, in order to supply random digital data of sufficient
entropy while conserving computer processing power and/or time.
We agree with Appellants that the Examiner erred in rejecting 21 40
as being directed to ineligible subject matter. We do not sustain the
Examiner’s § 101 rejection.
§ 103(a) Rejection over Zhang and Rose
We do not agree with the Examiner’s finding that Zhang discloses
determining a minimum level of entropy required by a consuming entity
from among multiple possible minimum levels of entropy, as the claims
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require. Ans. 5. The Examiner characterizes Zhang as disclosing two
possible minimum levels of entropy: “[ejither the entropy level
‘ satisfies/reaches ’ the predetermined security strength or it surpasses this
threshold.” Ans. 5 (citing Zhang 131). In contrast to the Examiner, we find
that Zhang discloses only the aforementioned “predetermined security
strength.” Zhang || 23—31. The Examiner has not identified a teaching in
Zhang that this predetermined security strength takes on one of multiple
possible values. Zhang teaches only that this single value is the threshold
against which the entropy of a string of bits from the entropy data
acquisition module is assessed. Zhang || 28—31.
We find that the combination of Zhang and Rose does not teach all the
limitations of claims 21—23, 26—30, 33—36, 39, and 40. Accordingly, we do
not sustain the Examiner’s § 103(a) rejection.
§ 103(a) Rejection of claims 24,25,31,32,37, and 38
Each of these claims depends from either independent claim 21,
independent claim 28, or independent claim 34.
We have reviewed Herbert, and we find that it does not remedy the
deficiencies of Zhang and Rose, as we expressed supra. Accordingly, we do
not sustain the § 103(a) rejection of claims 24, 25, 31, 32, 37, and 38 over
Zhang, Rose, and Herbert, for the same reasons expressed with respect to
parent claims 21, 28, and 34, supra.
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CONCLUSIONS
1. The claims are directed to patent-eligible subject matter.
2. The combination of Zhang and Rose does not disclose or suggest
determining a minimum level of entropy required by a consuming entity
from among multiple possible minimum levels of entropy required.
ORDER
The Examiner’s decision to reject claims 21—40 is reversed.
REVERSED
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