International Business Machines Corporation

Patent Trials and Appeals Board

Nov 10, 2020

2020000117 (P.T.A.B. Nov. 10, 2020)

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.
16/000,973 06/06/2018 XIN HU YOR920130641US02 1074
48150 7590 11/10/2020
MCGINN INTELLECTUAL PROPERTY LAW GROUP, PLLC
8321 OLD COURTHOUSE ROAD
SUITE 200
VIENNA, VA 22182-3817
EXAMINER
MEINECKE DIAZ, SUSANNA M
ART UNIT PAPER NUMBER
3683
MAIL DATE DELIVERY MODE
11/10/2020 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 XIN HU, REINER D. SAILER,
DOUGLAS LEE SCHALES, MARC PHILIPPE STOECKLIN, and
TING WANG
____________________

Appeal 2020-0001171
Application 16/000,973
Technology Center 3600
____________________

Before PHILLIP J. KAUFFMAN, TARA L. HUTCHINGS, and
ALYSSA A. FINAMORE, Administrative Patent Judges.

FINAMORE, Administrative Patent Judge.

DECISION ON APPEAL

1 The citations herein refer to the Specification filed June 6, 2018 (“Spec.”),
Final Office Action mailed March 19, 2019 (“Final Act.”), Appeal Brief
filed June 27, 2019 (“Appeal Br.”), Examiner’s Answer mailed
July 26, 2019 (“Ans.”), and Reply Brief filed September 19, 2019 (“Reply
Br.”).
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STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 4–11, and 14–20. We have
jurisdiction under § 6(b). We AFFIRM.
SUBJECT MATTER ON APPEAL
The invention relates to “a method and system of scoring asset risk.”
Spec. 1.3 Claims 1 and 11 are independent. Appeal Br., Claims App.
Independent claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A method for cognitive scoring of asset risk based on
predictive propagation of reputation-related events, the method
comprising:
modeling an interdependence of risks of a plurality of
entities within a network by modeling the network as a graph
connecting different entities, the different entities including a
device, a credential, a high-value asset, and an external server,
the graph being defined as a set of vertices comprising the device,
the credential, the high-value asset, and the external server and a
set of edges represented by an N-by-N adjacency matrix with
each pair of the entities sharing a relationship; and
applying a Belief Propagation (BP) algorithm for solving
the inference problem over the graph by inferring the risk from
the entities own properties and surrounding entities with the
shared relationship in the adjacency matrix, the Belief
Propagation algorithm obtains risk information related to each
entity of the plurality of entities; and
allocating an additional resource for investigation for a
novel attack on the network from the entity having a ranked risk
value greater than a threshold value,

2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as International Business Machines
Corporation. Appeal Br. 1.
3 Appellant’s Specification does not include line or paragraph numbering, so
our citations to the Specification refer to only the page number.
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wherein the BP algorithm obtains the risk information
based on a reputation of the each entity and a reputation of an
entity connected to the each entity,
wherein the BP algorithm assigns an initial risk value
based on domain knowledge,
wherein each entity of the plurality of entities comprises
one of a user, a device, a credential, a high-value asset, and an
external server,
wherein the risk of each entity is determined based on both
of the domain knowledge of each individual entity and properties
of neighboring entities of the plurality of entities,
wherein the risk value is determined based on an initial
risk value,
wherein the determining further includes analyzing a
reputation of the each entity,
wherein the analyzing is based on at least one of an
exposure level of the each entity and a behavior of the each
entity, and
wherein the analyzing includes correlating the reputation
of the each entity between entities.
Id. (claim status identifier omitted).

REJECTIONS
Claims Rejected 35 U.S.C. § Basis
1, 4–11, 14–20 112(a) Written Description
1, 4–11, 14–20 101 Eligibility
1, 4–11, 14–20 Provisional Nonstatutory Double Patenting

ANALYSIS
Written Description
Each of independent claims 1 and 11 recites “allocating an additional
resource for investigation for a novel attack on the network from the entity
having a ranked risk value greater than a threshold value.” Appeal Br.,
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Claims App. The Examiner finds this limitation lacks written description.
Final Act. 4–5. According to the Examiner, the passage of the Specification
at page 6, lines 15–19, which describes “[b]y ranking the high risk devices,
the present invention allows Information Technology (IT) departments to
make informed decisions on the allocation of resources for further
investigation, such that more important and severe cases can be investigated
first and damages prevented at the earlier stage of the attacks,” does not
provide written description for the limitation because there is no indication
that a threshold value is defined, much less that additional resources for
investigation are allocated based on an entity having a ranked risk value
greater than a threshold value. Id. at 4.
Appellant argues the cited portion of the Specification provides
written description for the limitation because “‘severe cases’ would easily be
understood by a person having ordinary skill in the art as cases above a set
threshold value.” Reply Br. 2. Appellant also argues the Specification
describes a “threshold.”4 Appeal Br. 10.
Beginning with the Specification’s identification of “severe cases” in
the cited passage on page 6 of the Specification, this passage describes
ranking the high risk devices so that more important and severe cases can be
investigated first. The Examiner correctly finds that, in context, “severe”
refers to a high ranking of risk, not a threshold value above which an

4 For a description of “threshold,” Appellant cites to page 16, lines 9–20 of
the Specification, but there is no discussion of a threshold in this portion of
the Specification. Appellant appears to be referring to U.S. Patent
Application No. 14/229,155, to which the present application claims priority.
Spec. 1. The passage of the Specification bridging pages 13–14 corresponds
to the passage at page 16, lines 9–20 of the prior application.
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additional resource for investigation is allocated. Final Act. 4; Ans. 9–10.
Turning to the Specification’s description of “threshold,” the Specification
describes a threshold for convergence of the message update equation.
Spec. 13–14. We agree with the Examiner that this threshold does not
describe a threshold for a ranked risk value above which an additional
resource for investigation is allocated. Ans. 9.
In view of the foregoing, Appellant does not show error in the
Examiner’s finding of a lack of written description for “allocating an
additional resource for investigation for a novel attack on the network from
the entity having a ranked risk value greater than a threshold value,” as
recited in each of independent claims 1 and 11. We, therefore, sustain the
rejection of independent claims 1 and 11 and claims 4–10 and 14–20
depending therefrom.

Eligibility
Principles of Law
35 U.S.C. § 101
An invention is patent eligible if it is a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101. The
Supreme Court, however, has long interpreted § 101 to include an implicit
exception: “[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)
(quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 589 (2013)).
To “distinguish[] patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
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applications of those concepts,” the Supreme Court, in Alice, reaffirmed the
two-step analysis previously set forth in Mayo Collaborative Services v.
Prometheus Laboratories, Inc., 566 U.S. 66 (2012). Alice, 573 U.S. at 217.
The first step of the analysis considers whether a claim is directed to a
patent-ineligible concept, e.g., an abstract idea. Id. (citing Mayo, 566 U.S.
at 77). According to Supreme Court precedent, concepts determined to be
abstract ideas, and thus patent ineligible, include certain methods of
organizing human activity, such as fundamental economic practices (id.
at 219–20; Bilski v. Kappos, 561 U.S. 593, 611 (2010)); mathematical
formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental
processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)).
The Supreme Court has also made clear “[a] claim drawn to subject
matter otherwise statutory does not become nonstatutory simply because it
uses a mathematical formula.” Diamond v. Diehr, 450 U.S. 175, 187 (1981).
In that same case, the Supreme Court cautioned 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. at 191 (citing Benson and Flook).
If the claim is directed to an abstract idea, we turn to the second step
of the Alice framework. The second step considers whether the claim recites
an inventive concept—an element or combination of elements sufficient to
ensure the claim amounts to significantly more than the abstract idea and
transform the nature of the claim into a patent-eligible application. Alice,
573 U.S. at 217–18 (citing Mayo, 566 U.S. at 72–73, 78, 79). “A claim that
recites an abstract idea must include ‘additional features’ to ensure ‘that the
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[claim] is more than a drafting effort designed to monopolize the [abstract
idea].’” Id. at 221 (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.
USPTO Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of 35 U.S.C. § 101. 2019
Revised Patent Subject Matter Eligibility Guidance (“2019 Revised
Guidance”), 84 Fed. Reg. 50 (Jan. 7, 2019). 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 (“October 2019 Update”), https://www.uspto.gov/
sites/default/files/documents/peg_oct_2019_update.pdf. The Office has
since incorporated this guidance into the Manual of Patent Examining
Procedure (“MPEP”). MPEP § 2106 (9th ed. Rev. 10.2019, June 2020).
“All USPTO personnel are, as a matter of internal agency management,
expected to follow the guidance.” 2019 Revised Guidance, 84 Fed. Reg.
at 51; see also October 2019 Update supra at 1.
Under this Guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas, i.e., (a) mathematical concepts, (b) certain methods of
organizing human activity such as a fundamental economic practice,
and (c) mental processes, (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (“Step 2A, Prong Two”).
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2019 Revised Guidance, 84 Fed. Reg. at 52–55; MPEP §§ 2106.04(II)(A),
2106.04(a), 2106.04(d). The evaluation under Step 2A, Prong Two is
performed 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.
2019 Revised Guidance, 84 Fed. Reg. at 54–55 (Section III(A)(2)); MPEP
§§ 2106.04(II)(A)(2), 2016.04(d).
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, conventional” in the field; 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.
2019 Revised Guidance, 84 Fed. Reg. at 52–56; MPEP § 2106.05(d).

Rejection
Appellant argues claims 1, 4–11, and 14–20 as a group. Appeal
Br. 10–14; Reply Br. 2–4. In accordance with 37 C.F.R. § 41.37(c)(1)(iv),
we select independent method claim 1 as representative, and the remaining
claims stand or fall with independent claim 1.
In rejecting independent claim 1 under 35 U.S.C. § 101 as patent
ineligible, the Examiner analyzes the claim using the Alice two-step
framework and the Office’s guidance. Final Act. 5–6. Pursuant to Step 2A,
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Prong One, the Examiner determines the claim recites determining a risk
value, ranking each risk value by computing a reputation for an entity, and
allocating resources for investigation of a risk event, which are mental
processes and represent a method of organizing human activity such that the
claim recites an abstract idea. Final Act. 5. Under Prong Two, the
Examiner determines the claim does not recite any additional elements that
integrate the abstract idea into a practical application because the claimed
invention implements the abstract idea on a general purpose computer. Id.
at 5–6 (citing Spec. 22:10–11). In particular, the Examiner determines the
limitation reciting “allocating an additional resource for investigation for a
novel attack on the network from the entity having a ranked risk value
greater than a threshold value” does not integrate the abstract idea into a
practical application because the limitation “could simply mean that an area
of risk is identified and a human is advised to keep an eye on that particular
area of risk.” Id. at 6. Turning to Step 2B, the Examiner determines that, for
the same reasons the claim fails Step 2A, Prong Two, “there is nothing in the
claim[] as a whole that adds significantly more than the abstract idea.” Id.
Before evaluating the Examiner’s rejection and Appellant’s arguments
with respect to steps of the Alice framework and the Office’s guidance, we
reject Appellant’s assertion that the claimed invention is patent eligible
because it does not preempt the abstract idea. Reply Br. 4. Although
preemption may be the concern behind the judicial exceptions to statutory
subject matter, preemption is not the test for eligibility. “The Supreme
Court has made clear that the principle of preemption is the basis for the
judicial exceptions to patentability. For this reason, questions on preemption
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are inherent in and resolved by the § 101 analysis.” Ariosa Diagnostics, Inc.
v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (citation omitted).
Step 2A, Prong One: Recitation of a Judicial Exception, e.g., an
Abstract Idea
Independent claim 1 recites:
modeling an interdependence of risks of a plurality of
entities within a network by modeling the network as a graph
connecting different entities, the different entities including a
device, a credential, a high-value asset, and an external server,
the graph being defined as a set of vertices comprising the device,
the credential, the high-value asset, and the external server and a
set of edges represented by an N-by-N adjacency matrix with
each pair of the entities sharing a relationship; and
applying a Belief Propagation (BP) algorithm for solving
the inference problem over the graph by inferring the risk from
the entities own properties and surrounding entities with the
shared relationship in the adjacency matrix, the Belief
Propagation algorithm obtains risk information related to each
entity of the plurality of entities; and
allocating an additional resource for investigation for a
novel attack on the network from the entity having a ranked risk
value greater than a threshold value,
wherein the BP algorithm obtains the risk information
based on a reputation of the each entity and a reputation of an
entity connected to the each entity,
wherein the BP algorithm assigns an initial risk value
based on domain knowledge,
wherein each entity of the plurality of entities comprises
one of a user, a device, a credential, a high-value asset, and an
external server,
wherein the risk of each entity is determined based on both
of the domain knowledge of each individual entity and properties
of neighboring entities of the plurality of entities,
wherein the risk value is determined based on an initial
risk value,
wherein the determining further includes analyzing a
reputation of the each entity,
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wherein the analyzing is based on at least one of an
exposure level of the each entity and a behavior of the each
entity, and
wherein the analyzing includes correlating the reputation
of the each entity between entities.
Appeal Br., Claims App. Modeling an interdependence of risks of a
plurality of entities within a network, using a BP algorithm that assigns an
initial risk value of each entity based on domain knowledge to obtain risk
information based on a reputation of the entity and a reputation of an entity
connected to the entity, analyzing a reputation of the entity based on at least
one of an exposure level of the entity and a behavior of the entity, and
correlating the reputation of the entity between entities, as recited in the
claim, obtains the risk information associated with each entity of a network.
Allocating an additional resource for investigation for a novel attack on the
network from the entity having a ranked risk value greater than a threshold
value, as also recited in the claim, is a response to the obtained risk
information. Obtaining risk information and a response to the risk
information are instructions for addressing risk. Under the Office’s
guidance, following rules or instructions is considered managing personal
behavior or relationships or interactions between people, which is a
sub-grouping of certain methods of organizing human activity. October
2019 Update supra at 4–6; MPEP § 2106.04(a)(2)(II)(C). Certain methods
of organizing human activity is one of the groupings of abstract ideas
identified in the guidance. 2019 Revised Guidance, 84 Fed. Reg. at 52;
MPEP §§ 2106.04(a), 2106.04(a)(2)(II). In view of these limitations reciting
an abstract idea, independent claim 1 recites a judicial exception.
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Step 2A, Prong Two: Integration into a Practical Application
Having determined that independent claim 1 recites a judicial
exception, we next consider whether the claim recites any additional
elements that integrate the judicial exception into a practical application.
2019 Revised Guidance, 84 Fed. Reg. at 54–55; MPEP §§ 2106.04(II),
2106.04(d). More specifically, we evaluate any additional elements,
individually or in combination, to determine whether they integrate the
exception into a practical application, using one or more of the
considerations laid out by the Supreme Court and the Federal Circuit and set
forth in MPEP §§ 2106.04(d)(1)–(2) and 2106.05(a)–(c), (e)–(h). MPEP
§ 2106.04(d)(I); see also 2019 Revised Guidance, 84 Fed. Reg. at 54–55.
Appellant argues the claimed invention integrates the judicial
exception in a practical application by modeling a network as a graph using
a processor, applying a BP algorithm, and allocating additional resources for
higher risk entities. Appeal Br. 13. Appellant further argues the claimed
invention improves upon the relevant technology. Id.; Reply Br. 2–3.
According to the Office’s guidance for Prong Two, if an additional
element, alone or in combination, reflects an improvement in the functioning
of a computer or an improvement to another technology or technical field,
then the additional element may integrate the judicial exception into a
practical application. 2019 Revised Guidance, 84 Fed. Reg. at 55; MPEP
§§ 2106.04(d)(1), 2106.05(a). The guidance also prescribes that “the Prong
Two analysis considers the claim as a whole,” and that “the limitations
containing the judicial exception as well as the additional elements in the
claim besides the judicial exception need to be evaluated together to
determine whether the claim integrates the judicial exception into a practical
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application.” MPEP § 2106.04(d)(III); see also October 2019 Update supra
at 12.
Modeling the network as a graph, applying a BP algorithm, and
allocating an additional resource for investigation for a novel attack on the
network from the entity having a highly ranked risk value are part of the
judicial exception, as set forth above in regard to Step 2A, Prong One, and
thus devoid of technology. Final Act. 6; Ans. 10–11. Moreover, contrary to
Appellant’s argument, independent claim 1 does not recite using a processor
to model the network as a graph. Nor does independent claim 1 recite any
components of the network which may be improved with the
implementation of the recited risk management. Independent claim 1 does
not recite any technological components that reflect a technological
improvement, or any additional elements apart from the judicial exception.
In the absence of any additional elements, independent claim 1 does
not integrate the judicial exception into a practical application.
Consequently, independent claim 1, as a whole, is directed to a judicial
exception.
Step 2B: Well-understood, routine, conventional
As independent claim 1 recites a judicial exception and does not
integrate the judicial exception into a practical application, we consider
whether the claim includes any additional elements, alone or in combination,
that are not well-understood, routine, conventional activity in the field. 2019
Revised Guidance, 84 Fed. Reg. at 56; MPEP § 2106.05(d). Appellant
points to the claim limitations reciting determining a risk value for each
entity, ranking each risk value, and allocating an additional resource for
investigation based on the ranked risk value, and contends these limitations
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are not well-understood, routine, or conventional. Appeal Br. 12–13; Reply
Br. 3. Appellant further contends these limitations are not well-understood,
routine, or conventional because they are not found in the prior art. Appeal
Br. 13; Reply Br. 4.
The claim limitations Appellant relies on, however, are not recited in
independent claim 1, and, instead, appear to be limitations from independent
claim 1 in the parent application. To the extent independent claim 1 of the
present application recites subject matter that is not found in the prior art, the
analysis under Step 2B of the Office’s guidance is not an evaluation of
novelty or non-obviousness. MPEP § 2106.05(I); see also Diehr, 450 U.S.
at 188–89 (“The ‘novelty’ of any element or steps in a process, or even of
the process itself, is of no relevance in determining whether the subject
matter of a claim falls within the § 101 categories of possibly patentable
subject matter.”); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138,
1151 (Fed. Cir. 2016) (“[A] claim for a new abstract idea is still an abstract
idea. The search for a § 101 inventive concept is thus distinct from
demonstrating § 102 novelty.”); Intellectual Ventures I LLC v. Symantec
Corp., 838 F.3d 1307, 1315 (Fed. Cir. 2016) (“While the claims may not
have been anticipated or obvious . . . that does not suggest that the idea . . . is
not abstract, much less that its implementation is not routine and
conventional.”).
Moreover, Step 2B considers additional elements, as limitations
reciting a judicial exception cannot supply an inventive concept. MPEP
§ 2106.05(I); see also Mayo, 566 U.S. at 72–73 (requiring “a process that
focuses upon the use of a natural law also contain other elements or a
combination of elements, sometimes referred to as an ‘inventive concept,’
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sufficient to ensure that the patent in practice amounts to significantly more
than a patent upon the natural law itself” (emphasis added)); BSG Tech. LLC
v. Buyseasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (“It has been clear
since Alice that a claimed invention’s use of the ineligible concept to which
it is directed cannot supply the inventive concept that renders the invention
‘significantly more’ than that ineligible concept.”); Berkheimer v. HP Inc.,
890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J., concurring) (“[A]nd
Berkheimer . . . leave[s] untouched the numerous cases from [the Federal
Circuit] which have held claims ineligible because the only alleged
‘inventive concept’ is the abstract idea.).” As set forth above in regard to
Step 2A, Prong Two, independent claim 1 does not recite any additional
elements apart from the judicial exception, and, thus, lacks any additional
elements that are not well-understood, routine, conventional activity in the
field.
Conclusion for the Rejection
In view of the foregoing, independent claim 1 is directed to a judicial
exception without significantly more to transform the nature of the claim
into a patent-eligible application. We, therefore, sustain the rejection of
independent claim 1, with claims 4–11 and 14–20 falling therewith.

Nonstatutory Double Patenting
Appellant does not refute the Examiner’s provisional rejection on the
ground of nonstatutory double patenting, and instead reserves the right to
file a terminal disclaimer once all other issues are resolved. Appeal Br. 14.
Being unapprised of error, we sustain the rejection. See Ex Parte Frye, 94
USPQ2d 1072, 1075 (BPAI 2010) (precedential) (explaining that the Board
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reviews a rejection for error “based upon the issues identified by appellant,
and in light of the arguments and evidence produced thereon”).

CONCLUSION
We sustain the rejection of claims 1, 4–11, and 14–20 under 35 U.S.C.
§ 112(a) for failure to comply with the written description requirement, as
well as the rejection of these claims under 35 U.S.C. § 101 as patent
ineligible. We also sustain the provisional rejection of these claims based on
the ground of nonstatutory double patenting.

DECISION SUMMARY
Claims
Rejected 35 U.S.C. § Basis Affirmed Reversed
1, 4–11,
14–20 112(a) Written Description
1, 4–11,
14–20
1, 4–11,
14–20 101 Eligibility
1, 4–11,
14–20
1, 4–11,
14–20
Provisional
Nonstatutory
Double Patenting
1, 4–11,
14–20
Overall
Outcome
1, 4–11,
14–20

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). 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED