Taiyeong Lee et al.

Patent Trials and Appeals Board

May 11, 2020

14482726 - (D) (P.T.A.B. May. 11, 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.
14/482,726 09/10/2014 Taiyeong Lee 04500-0028-03 8949
114605 7590 05/11/2020
Bell & Manning, LLC
2801 West Beltline Hwy.
Ste. 210
Madison, WI 53713
EXAMINER
POLLOCK, GREGORY A
ART UNIT PAPER NUMBER
3695
NOTIFICATION DATE DELIVERY MODE
05/11/2020 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):
cbell@bellmanning.com
docketing@bellmanning.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TAIYEONG LEE,
SHUNPING HUANG,
RUIWEN ZHANG,
and JARED LANGFORD DEAN
____________

Appeal 2018-008335
Application 14/482,726
Technology Center 3600
____________

Before ANTON W. FETTING, KENNETH G. SCHOPFER, and
BRADLEY B. BAYAT, Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1

Taiyeong Lee, Shunping Huang, Ruiwen Zhang, and Jared Langford
Dean (Appellant)2 seeks review under 35 U.S.C. § 134(a) of a final rejection
of claims 1–11, 13–20, 22–25, 27–31, and 33–36, the only claims pending in

1 Our Decision will make reference to the Appellant’s Appeal Brief
(“Appeal Br.,” filed May 24, 2018) and Reply Brief (“Reply Br.,” filed
August 21, 2018), and the Examiner’s Answer (“Ans.,” mailed July 16,
2018), and Final Action (“Final Act.,” mailed January 18, 2018).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as SAS
Institute Inc. (Appeal Br. 4).
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the application on appeal. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
The Appellant invented a way of transforming time series data to
cluster data. Specification para. 3.
An understanding of the invention can be derived from a reading of
exemplary claim 27, which is reproduced below (bracketed matter and some
paragraphing added).
27. A method of transforming3 time series data to cluster data,
the method comprising:
[1] receiving time series data,
wherein the time series data includes a plurality of time series,
wherein a plurality of time points are defined in association
with each of the plurality of time series;
[2] assigning, by a computing device, the plurality of time
series to a first cluster;
[3] computing, by the computing device, values of a distance
between a first time series selected from the plurality of time
series and each of a remaining set of time series of the plurality
of time series using a dynamic time warping distance
computation method,4

3 A mathematical transformation is a mapping of one space onto another or
onto itself. American Heritage Dictionary, https://www.ahdictionary.com
/word/search.html?q=transformation, last visited April 28, 2020.
4 The word “distance” as used in dynamic time warping, refers to a numeric
measure of statistical data similarity and not a physical or spatial distance.
See, e.g. Introduction To Dynamic Time Warping, https://riptutorial.com/
algorithm/example/24981/introduction-to-dynamic-time-warping, last
visited April 28, 2020. The Keogh reference described at Specification 10
(and of record) describes how this statistical measure may be superior to
spatial Euclidean distance measures. Keough, Scaling up Dynamic Time
Warping for Datamining Applications, Proceedings of the Sixth ACM
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wherein values of the distance are computed pairwise between
each of the remaining set of time series of the plurality of time
series and the first time series;
[4] sorting, by the computing device, the computed values of
the distance in increasing value;
[5] computing, by the computing device, gap width values as a
difference between successive pairs of the sorted, computed
values;
[6] determining, by the computing device, whether the first
cluster is uniform based on the computed gap width values;
[7] when the first cluster is determined to not be uniform,
computing, by the computing device, a break location using the
computed gap width values;
(a) creating, by the computing device, a new cluster;
(b) reassigning, by the computing device, time series associated
with computed values of the distance that are greater than the
distance associated with the computed break location to the new
cluster;
(c) selecting, by the computing device, a second time series
from the time series reassigned to the new cluster;
(d) identifying, by the computing device, a second remaining
set of time series as the time series reassigned to the new cluster
excluding the selected second time series;
(e) computing, by the computing device, second values of a
second distance between the selected second time series and
each of the identified second remaining set of time series using
the dynamic time warping distance computation method,
wherein second values of the second distance are computed
between each of the identified second remaining set of time
series and the selected second time series;
(f) sorting, by the computing device, the computed second
values of the second distance in increasing value;

SIGKDD International Conference on Knowledge Discovery and Data
Mining, 285-289 (2000).
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(g) computing, by the computing device, second gap width
values as a second difference between successive pairs of the
sorted, computed second values;
(h) determining, by the computing device, if the new cluster is
uniform based on the computed second gap width values;
and
(i) when the new cluster is determined to not be uniform,
recomputing, by the computing device, the break location using
the computed second gap width values;
and
[8] repeating, by the computing device, (a) to (i) until the new
cluster is determined to be uniform, wherein the new cluster
created is a next new cluster and the computed break location is
the recomputed break location;
and
[9] outputting, by the computing device, cluster data to a cluster
data file that includes a time series cluster assignment for each
of the plurality of time series to identify time series that have a
similar pattern.
Claims 1–11, 13–20, 22–25, 27–31, and 33–36 stand rejected under
35 U.S.C. § 101 as directed to a judicial exception without significantly
more.5
ISSUES
The issues of eligible subject matter turn primarily on whether the
claims recite more than abstract conceptual advice of results desired.

5 A rejection under 35 U.S.C. § 112, second paragraph (Final Act. 2) was
withdrawn in an Advisory Action mailed March 21, 2018.
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ANALYSIS
STEP 16
Claim 27, as a method claim, nominally recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. The issue before us
is whether it is directed to a judicial exception without significantly more.
STEP 2
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. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014) (citations
omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc.,
566 U.S. 66 (2012)). To perform this test, we must first determine what the
claims are directed to. This begins by determining whether the claims recite
one of the judicial exceptions (a law of nature, a natural phenomenon, or an
abstract idea). Then, if the claims recite a judicial exception, determining

6 For continuity of analysis, we adopt the steps nomenclature from 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Revised Guidance”).
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whether the claims at issue are directed to the recited judicial exception, or
whether the recited judicial exception is integrated into a practical
application of that exception, i.e., that the claims “apply, rely on, or use the
judicial exception in a manner that imposes a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the judicial exception.” Revised Guidance, 84 Fed. Reg. at
53. If the claims are directed to a judicial exception, then finally
determining whether the claims provide an inventive concept because the
additional elements recited in the claims provide significantly more than the
recited judicial exception.
STEP 2A Prong 1
At a high level, and for our preliminary analysis, we note that method
claim 27 recites receiving data, iteratively assigning time series data to
cluster data, computing and sorting and further computing values,
determining whether data has a uniformity characteristic, computing break
location data and reassigning data, stopping iteration when data has a
uniformity characteristic, and outputting data. Assigning, computing,
sorting, testing values, and iterating are all parts of mathematical calculation.
Thus, claim 27 recites receiving, performing a mathematical algorithm on,
and transmitting data. None of the limitations recite technological
implementation details for any of these steps, but instead recite only results
desired by any and all possible means.
From this we see that claim 27 does not recite the judicial exceptions
of either natural phenomena or laws of nature.
Under Supreme Court precedent, claims directed purely to an abstract
idea are patent in-eligible. As set forth in the Revised Guidance, which
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extracts and synthesizes key concepts identified by the courts, abstract ideas
include (1) mathematical concepts7, (2) certain methods of organizing
human activity8, and (3) mental processes9. Among those certain methods
of organizing human activity listed in the Revised Guidance are
mathematical concepts. Like those concepts, claim 27 recites the concept of
transforming time series to cluster data. Specifically, claim 27 recites
operations that would ordinarily take place in advising one to perform a
mathematical algorithm consisting of mathematical formulas, operations,
and calculations. The advice to perform a mathematical algorithm
consisting of mathematical formulas, operations, and calculations in this
instance involves transforming time series data to cluster data, which is a
mathematical algorithm, and using a dynamic time warping distance
computation method, which is an act ordinarily performed in a mathematical
algorithm. For example, claim 27 recites “transforming time series data to
cluster data,” which is an activity that would take place whenever one is
performing a mathematical transform. Similarly, claim 1 recites “using a

7 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972); Bilski v.
Kappos, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio
Corp. of Am., 306 U.S. 86, 94 (1939); SAP Am., Inc. v. InvestPic, LLC, 898
F.3d 1161, 1163 (Fed. Cir. 2018).
8 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219–20; Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014); Smart Sys.
Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir.
2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160–61 (Fed.
Cir. 2018).
9 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1371–72 (Fed. Cir. 2011); Intellectual Ventures I LLC
v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016).
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dynamic time warping distance computation method,” which is also
characteristic of a mathematical algorithm.
The Examiner determines the claims to be directed to a mathematical
procedure for converting one form of numerical representation to another.
Final Act. 6.
The preamble to claim 27 recites that it is a method of transforming
time series data to cluster data. The steps in claim 27 result in transforming
time series data to cluster data absent any technological mechanism other
than a conventional computer for doing so.
As to the specific limitations, limitation 1 recites receiving data.
Limitations 2–7 recite generic and conventional performing a mathematical
algorithm on and transmitting of time series and cluster data, which advise
one to apply generic functions and a mathematical algorithm to get to these
results. The limitations thus recite advice for performing a mathematical
algorithm consisting of mathematical formulas, operations, and calculations.
To advocate performing a mathematical algorithm consisting of
mathematical formulas, operations, and calculations is conceptual advice for
results desired and not technological operations.
The Specification at paragraph 3 describes the invention as relating to
transforming time series data to cluster data. The Specification describes
such cluster data as being used to support time series data mining by
grouping time series that have a similar pattern into a cluster. The
Specification provides example time series including stock market prices,
interest rates, sales of a product, scientific results, weather readings, sensor
readings, medical records, manufacturing processes, etc. Spec. para. 2.
Thus, the Specification describes time series clustering as a mathematical
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research technique for analyzing data rather than a technological technique
for improving how data is organized and stored for retrieval.
Thus, all this intrinsic evidence shows that claim 27 recites
transforming time series to cluster data. This is consistent with the
Examiner’s determination.
This in turn is an example of a mathematical algorithm because a
numeric transform of data between domains such as time and clusters is a
basic form of mathematical algorithm. The concept of transforming time
series to cluster data by performing a mathematical algorithm consisting of
mathematical formulas, operations, and calculations is one idea for the
computations in the algorithm. The steps recited in claim 27 are part of how
this might conceptually be premised.
Our reviewing court has found claims to be directed to abstract ideas
when they recited similar subject matter. Digitech Image Techs, LLC v.
Elecs for Imaging, Inc., 758 F.3d 1344, 1351 (2014) (process of taking
plural data sets and combining them into a single data set); SAP Am., Inc. v.
InvestPic, LLC, 898 F.3d 1161, 1167 (2018) (analyzing information using
mathematical techniques and displaying results); Benson, 409 U.S. at 71–72
(converting one form of numerical representation to another).
From this we conclude that at least to this degree, claim 27 recites
transforming time series to cluster data by performing a mathematical
algorithm consisting of mathematical formulas, operations, and calculations,
which is a mathematical algorithm, one of mathematical concepts identified
in the Revised Guidance, and, thus, an abstract idea.
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STEP 2A Prong 2
The next issue is whether claim 27 not only recites, but is more
precisely directed to this concept itself or whether it is instead directed to
some technological implementation or application of, or improvement to,
this concept, i.e. integrated into a practical application.10
At the same time, we tread carefully in construing this
exclusionary principle lest it swallow all of patent law. At
some level, “all inventions ... embody, use, reflect, rest upon, or
apply laws of nature, natural phenomena, or abstract ideas.”
Thus, an invention is not rendered ineligible for patent simply
because it involves an abstract concept. “[A]pplication[s]” of
such concepts “ ‘to a new and useful end,’ ” we have said,
remain eligible for patent protection. Accordingly, in applying
the § 101 exception, we must distinguish between patents that
claim the “ ‘buildin[g] block[s]’ ” of human ingenuity and those
that integrate the building blocks into something more.
Alice, 573 U.S. at 217 (citations omitted).
Taking the claim elements separately, the operation performed by the
computer at each step of the process is expressed purely in terms of results,
devoid of implementation details. Step 1 is a pure data gathering step.
Limitations describing the nature of the data do not alter this. Step 7 is
insignificant post solution activity, such as storing, transmitting, or
displaying the results. Steps 2–6 recite generic mathematical algorithm
computer processing expressed in terms of results desired by any and all
possible means and so present no more than conceptual advice. All
purported inventive aspects reside in how the data is interpreted and the
results desired, and not in how the process physically enforces such a data

10 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S.
175 (1981).
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interpretation or in how the processing technologically achieves those
results.
Viewed as a whole, Appellant’s claim 27 simply recites the concept of
transforming time series to cluster data by performing a mathematical
algorithm consisting of mathematical formulas, operations, and calculations
as performed by a generic computer. This is no more than conceptual advice
on the parameters for this concept and the generic computer processes
necessary to process those parameters, and do not recite any particular
implementation.
Claim 27 does not, for example, purport to improve the functioning of
the computer itself. Nor does it effect an improvement in any other
technology or technical field. The 16+ pages of specification do not bulge
with disclosure, but only spell out different generic equipment11 and
parameters that might be applied using this concept and the particular steps
such conventional processing would entail based on the concept of
transforming time series to cluster data by performing a mathematical
algorithm consisting of mathematical formulas, operations, and calculations
under different scenarios. They do not describe any particular improvement
in the manner a computer functions. Instead, claim 27 at issue amounts to
nothing significantly more than an instruction to apply transforming time
series to cluster data by performing a mathematical algorithm consisting of
mathematical formulas, operations, and calculations using some unspecified,
generic computer. Under our precedents, that is not enough to transform an
abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 225–26.

11 The Specification describes a generic computer. Spec. para. 54.
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None of the limitations reflect an improvement in the functioning of a
computer, or an improvement to other technology or technical field, applies
or uses a judicial exception to effect a particular treatment or prophylaxis for
a disease or medical condition, implements a judicial exception with, or uses
a judicial exception in conjunction with, a particular machine or manufacture
that is integral to the claim, effects a transformation or reduction of a
particular article to a different state or thing, or applies or uses the judicial
exception in some other meaningful way beyond generally linking the use of
the judicial exception to a particular technological environment, such that
the claim as a whole is more than a drafting effort designed to monopolize
the exception.
We conclude that claim 27 is directed to achieving the result of
transforming time series to cluster data by advising one to perform a
mathematical algorithm consisting of mathematical formulas, operations,
and calculations, as distinguished from a technological improvement for
achieving or applying that result. This amounts to a mathematical algorithm,
which fall within mathematical concepts that constitute abstract ideas. The
claim does not integrate the judicial exception into a practical application.
STEP 2B
The next issue is whether claim 27 provides an inventive concept
because the additional elements recited in the claim provide significantly
more than the recited judicial exception.
The introduction of a computer into the claims does not generally alter
the analysis at Mayo step two.
the mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is
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not enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implement[t]” an abstract
idea “on . . . a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the pre-emption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of “additional
feature[e]” that provides any “practical assurance that the
process is more than a drafting effort designed to monopolize
the [abstract idea] itself.”
Alice, 573 U.S. at 223–24 (citations omitted).
“[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Alice, 573 U.S. at 225. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer for receiving, performing a mathematical algorithm on, and
transmitting data amounts to electronic mathematical algorithm processing
—one of the most basic functions of a computer. All of these computer
functions are generic, routine, conventional computer activities that are
performed only for their conventional uses. See Elec. Power Grp. LLC v.
Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). See also In re Katz
Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir.
2011) (“Absent a possible narrower construction of the terms ‘processing,’
‘receiving,’ and ‘storing,’ . . . those functions can be achieved by any
general purpose computer without special programming”). None of these
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activities is used in some unconventional manner nor does any produce some
unexpected result. Appellant does not contend it invented any of these
activities. In short, each step does no more than require a generic computer
to perform generic computer functions. As to the data operated upon, “even
if a process of collecting and analyzing information is ‘limited to particular
content’ or a particular ‘source,’ that limitation does not make the collection
and analysis other than abstract.” SAP Am., 898 F.3d at 1168.
Considered as an ordered combination, the computer components of
Appellant’s claim 27 add nothing that is not already present when the steps
are considered separately. The sequence of data reception- mathematical
computation-transmission is equally generic and conventional. See
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014)
(sequence of receiving, selecting, offering for exchange, display, allowing
access, and receiving payment recited an abstraction), Inventor Holdings,
LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017)
(sequence of data retrieval, analysis, modification, generation, display, and
transmission), Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874
F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing,
controlling, and monitoring). The ordering of the steps is therefore ordinary
and conventional.
We conclude that claim 27 does not provide an inventive concept
because the additional elements recited in the claim do not provide
significantly more than the recited judicial exception.
REMAINING CLAIMS
Claim 27 is representative. The other independent method claim 36 is
substantially similar at least as regards this analysis. The remaining method
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claims merely describe process parameters. We conclude that the method
claims at issue are directed to a patent-ineligible concept itself, and not to
the practical application of that concept.
As to the structural claims, they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long “warn[ed] ... against” interpreting § 101 “in
ways that make patent eligibility ‘depend simply on the
draftsman’s art.’
Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any
particular machine.
LEGAL CONCLUSION
From these determinations, we further determine that the claims do
not recite an improvement to the functioning of the computer itself or to any
other technology or technical field, a particular machine, a particular
transformation, or other meaningful limitations. From this we conclude the
claims are directed to the judicial exception of the abstract idea of
mathematical concepts as exemplified by the mathematical algorithm of
transforming time series to cluster data by advising one to perform a
mathematical algorithm consisting of mathematical formulas, operations,
and calculations, without significantly more.
APPELLANT’S ARGUMENTS
As to Appellant’s Appeal Brief arguments, we adopt the Examiner’s
determinations and analysis from Final Action 3–8 and Answer 3–17 and
reach similar legal conclusions. We now turn to the Reply Brief.
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We are not persuaded by Appellant’s argument that the “claims
improve the functioning of a computer in identifying time series that have a
similar pattern, which has application in technical fields that require analysis
of scientific results, weather readings, sensor readings, medical records,
manufacturing processes, etc. for which it is important to identify temporal
patterns by clustering.” Reply Br. 26. This is a non-sequitur. Improving the
identification of time series with similar patterns is an improvement in
information, not computer technology. “The claims are focused on
providing information to traders in a way that helps them process
information more quickly, not on improving computers or technology.”
Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1378, 1384 (Fed. Cir. 2019).
The technical fields to which Appellant points are not recited in the claims
and so are outside the scope of the claims.
Similarly, we are not persuaded by Appellant’s argument that
“improving the speed at which time series clustering is performed using a
computer in comparison to other algorithms implemented on a computer is
an improvement to the computer.” Reply Br. 28 (emphasis omitted). Again,
this is a non-sequitur. Improving an algorithm that a computer performs, as
contrasted with an algorithm that improves the computer technological
performance, is again an improvement in information analysis, not
technological implementation. Devising a conceptual idea with fewer
iterations or steps still results in a conceptual idea.
GTG’s attempts to distinguish this case on the ground that the
method of claim 1 is useful have no basis in case law or in
logic. Claim 1 stands rejected under § 101 as ineligible for
claiming unpatentable subject matter, not for lack of utility.
The method claims of Mayo and Ariosa were apparently also
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useful, and also invalid. Utility is not the test for patent-
eligible subject matter.

Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1380 (Fed. Cir. 2016)
(citations omitted).
We are not persuaded by Appellant’s argument that the inventive
element is new and non-obvious. Reply Br. 27. This is not pertinent when
the inventive element is an abstract concept, such as a mathematical
algorithm.
We have explained that, “for a perceived abstract idea, if the
claim ‘contains an “inventive concept” sufficient to “transform”
the claimed abstract idea into a patent-eligible application,’ then
the claims pass the test of eligibility under section 101.” But
when a claim directed to an abstract idea “contains no
restriction on how the result is accomplished . . . [and] [t]he
mechanism . . . is not described, although this is stated to be
the essential innovation[,]”, then the claim is not patent-eligible.
Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1316 (Fed.
Cir. 2016) (citations omitted).
Similarly, we are not persuaded by Appellant’s argument that
the present application and claims are directed to clustering
time series much faster than previous techniques and without
having to predefine the number of clusters into which to
segment the time series, which is a clear and nonconventional
improvement over prior computerized methods previously used
to solve the problem of clustering a plurality of time series.
Reply Br. 31 (emphasis in original). Again, this is an improvement to a
mathematical algorithm, not computer technology, much as in Benson. That
it may turn an intractable numerical statistics problem into a tractable one is
itself a conceptual idea, because it is an improvement to the algorithm, a
conceptual idea, not to computer technology. The examples Appellant goes
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on to cite in various technologies are not commensurate with the scope of
the claims because those examples are not in the claims.
We are not persuaded by Appellant’s argument distinguishing Benson.
Reply Br. 38. Appellant first contends that the claims “are limited to a
detailed, new and non-obvious process to cluster time series data – a
particular technology and end use.” Id. Time data series are not a limited
technology and end use, they are mathematical models of events among a
wide array of contexts, as Appellant’s arguments admit supra. As an
abstraction of such events, such data are themselves no more than
disembodied concepts.
Appellant next contends “the present claims cannot reasonably or
rationally be performed mentally or without use of a computer as can the
simple conversion claimed in Benson.” Id. (emphasis omitted). First, this is
not necessarily so. An input of a few dozen data points could be solved with
this process in relatively short time. More to the point, whether one has the
time to solve a problem manually is not pertinent. Our reviewing court has
held that speed and accuracy increases stemming from the ordinary
capabilities of a general purpose computer “do[] not materially alter the
patent eligibility of the claimed subject matter.” Bancorp Servs., L.L.C. v.
Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir.
2012).
We are not persuaded by Appellant’s argument that the claims are
analogous to those in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed.
Cir. 2016). Reply Br. 43–49. The claims differ from those found patent
eligible in Enfish, where the claims were “specifically directed to a self-
referential table for computer database.” Id. at 1337. The claims thus
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were “directed to a specific improvement to the way computers operate”
rather than an abstract idea implemented on a computer. Id. at 1336.
Here, by contrast, the claims are not directed to an improvement in the
way computers operate. Though the claims purport to accelerate the
process of transforming time series data, our reviewing court has held that
speed and accuracy increases stemming from the ordinary capabilities of a
general purpose computer “do[] not materially alter the patent eligibility
of the claimed subject matter.” Bancorp, 687 F.3d at 1278. Instead, the
claims are more analogous to those in FairWarning, 839 F.3d 1089 (Fed.
Cir. 2016), wherein claims reciting “a few possible rules to analyze the
audit log data” were found directed t o an abstract idea because they
asked “the same questions (though perhaps phrased with different words)
that humans in analogous situations detecting fraud have asked for
decades.” 839 F.3d at 1094, 1095.
Appellant also attempts to analogize the claims to those involved in
McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir.
2016). Reply Br. 50–54. In McRO, the court held that, although the
processes were previously performed by humans, “the traditional process
and newly claimed method . . . produced . . . results in fundamentally
different ways.” FairWarning, 839 F.3d a t 1094 (differentiating the
claims at issue from those in McRO). In McRO, “it is the incorporation
of the claimed rules, not the use of the computer, that improved the
existing technology process,” because the prior process performed by
humans “was driven by subjective determinations rather than specific,
limited mathematical rules.” 837 F.3d at 1314 (internal quotation marks,
citation, and alterations omitted). In contrast, the claims of the instant
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application merely implement an old practice of using decision criteria in
making numeric transform decisions in a new environment. Appellant has not
argued that the claimed processes of selecting data points apply rules of
selection in a manner technologically different from those which humans
used, albeit with less efficiency, before the invention was claimed. Merely
pigeon holing the objects of decision making in tiers to aid decision making
is both old and itself abstract.
The claims in McRO were not directed to an abstract idea, but
instead were directed to “a specific asserted improvement in
computer animation, i.e., the automatic use of rules of a
particular type.” We explained that “the claimed improvement
[was] allowing computers to produce ‘accurate and realistic lip
synchronization and facial expressions in animated characters’
that previously could only be produced by human animators.”
The claimed rules in McRO transformed a traditionally
subjective process performed by human artists into a
mathematically automated process executed on computers.
FairWarning, 839 F.3d at 1094.
Appellant further argues that the asserted claims are akin to the
claims found patent-eligible in DDR Holdings, LLC v. Hotels.com, L.P.
773 F.3d 1245 (Fed. Cir. 2014). Reply Br. 57–58. In DDR Holdings,
the Court evaluated the eligibility of claims “address[ing] the problem of
retaining website visitors that, if adhering to the routine, conventional
functioning of Internet hyperlink protocol, would be instantly
transported away from a host’s website after ‘clicking’ on an
advertisement and activating a hyperlink.” Id. at 1257. There, the Court
found that the claims were patent eligible because they transformed the
manner in which a hyperlink typically functions to resolve a problem
that had no “pre-Internet analog.” Id. at 1258. The Court cautioned,
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however, “that not all claims purporting to address Internet-centric
challenges are eligible for patent.” Id. For example, in DDR Holdings the
Court distinguished the patent-eligible claims at issue from claims found
patent-ineligible in Ultramercial. See id. at 1258–59 (citing Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 7 0 9 , 715–16 (Fed. Cir. 2014)). As noted
there, the Ultramercial claims were “directed to a specific method of
advertising and content distribution that was previously unknown and
never employed on the Internet before.” Id. at 1258 (quoting
Ultramercial, 772 F.3d at 715–16). Nevertheless, those claims were
patent ineligible because they “merely recite[d] 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.
Appellant’s asserted claims are analogous to claims found ineligible
in Ultramercial and distinct from claims found eligible in DDR Holdings.
The ineligible claims in Ultramercial recited “providing [a] media product
for sale at an Internet website;” “restricting general public access to said
media product;” “receiving from the consumer a request to view [a]
sponsor message;” and “if the sponsor message is an interactive message,
presenting at least one query to the consumer and allowing said consumer
access to said media product after receiving a response to said at least one
query.” 772 F.3d at 712. Similarly, Appellant’s asserted claims recite
reading, performing mathematical operations on and outputting data. This is
the type of activity found ineligible in Ultramercial.
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We are not persuaded by Appellant’s argument that “[t]he claims are
not well-understood, routine or conventional.” Reply Br. 61 (emphasis
omitted). We support this determination supra, under Step 2B. Performing
mathematical algorithms is itself routine and conventional. To the extent
Appellant argues the algorithm itself is not routine or conventional, as
determined supra, mathematical algorithms are mathematical concepts, one
of the categories of abstract subject matter.
As to Appellant’s argument about claims 22, 25, and 36 that they are
in Jepson format, there is nothing about claim form that renders abstract
concepts patent eligible. To the extent the Jepson format specifies the point
of novelty, again, the point of novelty cannot be an abstract concept. The
point of novelty recited in claim 36 is “not computing a full distance
matrix.” An omission from a mathematical algorithm is the epitome of an
abstract concept, as it is the concept of removing something from another
concept, the algorithm.
The remaining arguments against various groups of claims are similar
to one another substantively, arguing in all cases only that the recited
elements are new and non-obvious and that they improve the process. As to
their being new and non-obvious, “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.” Synopsys, Inc. v. Mentor Graphics Corp.,
839 F.3d 1138, 1151 (Fed. Cir. 2016).
As to the arguments that those claims recite process improvements,
we determine as follows.
We are not persuaded by Appellant’s argument that claims 2, 22, and
28 recite activities used to determine whether a cluster is uniform or not.
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Appellant contends that determination of uniformity is used in the claimed
process to automatically determine the number of clusters that is a technical
improvement over existing computerized time series clustering methods.
Reply Br. 65–66. This contention is entirely conclusory. Determining a
number, even of categories, is a mathematical step, not a technological step.
We are not persuaded by Appellant’s argument that claim 5 recites a
computation of a uniformity criterion. Appellant contends that computation
of the uniformity criterion is used in the claimed process to automatically
determine the number of clusters that is a technical improvement over
existing computerized time series clustering methods. Reply Br. 66. This
contention is entirely conclusory. Determining a criterion is a conceptual
choice, not a technological step.
We are not persuaded by Appellant’s argument that claims 8, 24, and
30 recite computation of a uniformity measure. Appellant contends that
computation of the uniformity measure as used in the claimed process to
automatically determine the number of clusters is a technical improvement
over existing computerized time series clustering methods. Reply Br. 66–
67. This contention is entirely conclusory. Computing a measure is a
mathematical step, not a technological step.
We are not persuaded by Appellant’s argument that claim 13 recites a
computation of a break location. Appellant contends that computation of a
break location as used in the claimed process to automatically determine the
number of clusters and to automatically split the time series each iteration is
a technical improvement over existing computerized time series clustering
methods. Reply Br. 67. This contention is entirely conclusory. Computing
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a position in a range of data at which to break the range is a mathematical
step, not a technological step.
We are not persuaded by Appellant’s argument that claim 16 recites a
computation of a break location. Reply Br. 67–68. This simply repeats the
argument in support of claim 13 and is equally unpersuasive here.
We are not persuaded by Appellant’s argument that claim 17 recites a
computation of a break location. Reply Br. 68. This simply repeats the
argument in support of claim 13 and is equally unpersuasive here.
We are not persuaded by Appellant’s argument that claims 18 and 35
recite selection of a next time series. Appellant contends that selection of a
next time series is a technical improvement over existing computerized time
series clustering methods. Reply Br. 68. This contention is entirely
conclusory. Selecting a numeric series for mathematical analysis is a
mathematical step, not a technological step.
We are not persuaded by Appellant’s argument that claims 19 and 33
recite determination of the number of clusters. Appellant contends that
determination of the number of clusters is a technical improvement over
existing computerized time series clustering methods. Reply Br. 69. This
contention is entirely conclusory. Determining a number, even of
categories, is a mathematical step, not a technological step.
CONCLUSIONS OF LAW
The rejection of claims 1–11, 13–20, 22–25, 27–31, and 33–36 under
35 U.S.C. § 101 as directed to a judicial exception without significantly
more is proper.
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CONCLUSION
The rejection of claims 1–11, 13–20, 22–25, 27–31, and 33–36 is
affirmed.
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–11, 13–20,
22–25, 27–31,
33–36
101 Eligibility 1–11, 13–20,
22–25, 27–31,
33–36

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).

AFFIRMED