Vasudev Krishnamoorthy et al.

Patent Trials and Appeals Board

May 11, 2020

2018008371 (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.
14/177,121 02/10/2014 VASUDEV KRISHNAMOORTHY 60364-0012 8262
29989 7590 05/11/2020
HICKMAN PALERMO BECKER BINGHAM LLP
1 ALMADEN BOULEVARD
FLOOR 12
SAN JOSE, CA 95113
EXAMINER
FISHER, PAUL R
ART UNIT PAPER NUMBER
3689
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):
usdocket@h35g.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte VASUDEV KRISHNAMOORTHY,
TONY WANG, DENIS GEFTER,
and RON RASMUSSEN
____________

Appeal 2018-008371
Application 14/177,121
Technology Center 3600
____________

Before ANTON W. FETTING, PHILIP J. HOFFMANN, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE1
Vasudev Krishnamoorthy, Tony Wang, Denis Gefter, and Ron
Rasmussen (Appellant2) seeks review under 35 U.S.C. § 134 of a non-final
rejection of claims 1, 3–8, 10–12, 14–19, 21, and 22, the only claims
pending in the application on appeal. We have jurisdiction over the appeal
pursuant to 35 U.S.C. § 6(b).
The Appellant invented a way of updating a target data storage unit
with data available on a source data storage unit. Specification para. 1.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A method of improving accessibility and consistent
preservation of data comprising:
[1] using a controller server computer, receiving a plurality of
application events from an application events publisher of an
application program hosted using an application server
computer of a multi–tenant application service provider,
wherein each application event of the plurality of
application events indicates a tenant identifier and that
data records were created, modified, or deleted by the
application program in a source data storage unit;
[2] using the controller server computer, storing the plurality of
application events at a data pipeline data storage unit;

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed March 12, 2018) and Reply Brief (“Reply Br.,” filed August 15,
2018), and the Examiner’s Answer (“Ans.,” mailed June 15, 2018) and Non-
Final Action (“Non-Final Act.,” mailed September 22, 2017).
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 Xactly
Corporation (Appeal Br. 1).

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[3] using the controller server computer, determining whether a
previous update process for a particular tenant is in progression;
[4] using the controller server computer, in response to
determining that the previous update process for the particular
tenant is not in progression, determining to initiate an update
process for the particular tenant based on satisfying an update
frequency threshold in an update policy indicated by a tenant
identifier of the particular tenant, wherein the update process
comprises:
[4.1] selecting, based on the tenant identifier of the
particular tenant and on the update policy indicated by
the tenant identifier of the particular tenant, using the
controller server computer,
one or more application events of the particular
tenant from among the plurality of application
events stored at the data pipeline data storage unit;
wherein the one or more selected application
events have been automatically generated in
response to performing one or more requested
actions of the particular tenant in the application
program that cause the application program to
create, modify or delete one or more data records
of the data records in the source data storage unit;
[4.2] using the controller server computer, selecting data
from the one or more data records indicated by the one or
more selected application events, from the source data
storage unit;
[4.3] using the controller server computer, storing the
data at a target data storage unit;
[4.4] wherein, for the particular tenant, after storing the
data from the one or more data records indicated by the
one or more selected application events in the target data
storage unit, data of the particular tenant at the target
data storage unit is consistent with data of the particular
tenant at the source data storage unit;
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[4.5] wherein the method is performed using one or more
computing devices.
The Examiner relies upon the following prior art:
Name Reference Date
Bruno US 6,434,631 B1 Aug. 13, 2002
Ikeda US 2004/0243600 A1 Dec. 02, 2004
Takeda US 2006/0059303 A1 Mar. 16, 2006
Campbell US 2007 /0038884 A1 Feb. 15, 2007
Samuels US 2010/0274772 A1 Oct. 28, 2010
Claims 1, 3–8, 10–12, 14–19, 21, and 22 stand rejected under
35 U.S.C. § 101 as directed to a judicial exception without significantly
more.
Claims 1, 3, 5–8, 12, 14, and 16–19 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Ikeda, Samuels, and Campbell.
Claims 4, 10, 15 and 21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Ikeda, Samuels, Campbell, and Bruno.
Claims 11 and 22 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Ikeda, Samuels, Campbell, and Takeda.
ISSUES
The issues of eligible subject matter turn primarily on whether the
claims recite more than abstract conceptual advice of results desired.
The issues of obviousness turn primarily on whether the art describes
the claim limitations.
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FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Claim Construction
01. The disclosure contains no lexicographic definition of
“application event.”
02. The plain meaning of application event is an event somehow
modified by “application.”
03. An application refers to a computer application. Spec. para. 28.
04. “Tenant” in the Specification and claims means a computer data
customer, metaphorically renting computer space and resources as
a tenant. Spec. para. 4.
Facts Related to the Prior Art
Ikeda
05. Ikeda is directed to an information processing device within an
information processing system to perform the step of receiving
parameters entered for setting policies, which define the processes
to be performed by the information processing system, and the
step of changing the received parameters for the policies so as to
ensure that a policy set, which is an aggregate of the policies set
by the parameters, matches a control strategy of the information
processing system. Ikeda para. 9.
Samuels
06. Samuels is directed to storing data in a compressed format in a
storage cloud and generating snapshots of the stored data.
Samuels para. 1.
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07. Samuels describes a reference count monitor that generates
point-in-time copies (e.g., snapshots) of the master virtual storage
by generating copies of the master translation map. The copies
may be virtual copies or physical copies, in whole or in part. The
reference count monitor may generate snapshots according to a
snapshot policy. The snapshot policy may cause snapshots to be
generated every hour, every day, whenever a predetermined
amount of changes are made to the master virtual storage , etc.
Samuels para. 113.
Campbell
08. Campbell is directed to the backup of data from a client
computer to a remote location and specifically to the automatic
backing up of specified data from the client computer to an
attached storage at a remote location. Campbell para. 2.
09. Campbell describes an online backup module of the spare
backup software program as being scheduled to be executed
multiple times in a day. At the time of the execution of the
scheduled online backup, the online backup module executes and
backs selected information to the server system. Under certain
operating conditions, the online backup is performed without any
user intervention. Presets may be established in the spare backup
software program to customize the information that is backed up
during the automatic online backup process. The spare backup
software program may include a main backup software module
and a backup scheduler and launcher software module. Campbell
para. 18.
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ANALYSIS
Initially we note a significant claim construction issue. Claim 1 is not
about updating realty tenant data records as casual reading might suggest.
The use of the word “tenant” is a metaphoric use referring in this case to a
customer leasing computer data services. This ambiguity likely explains the
Application being classified in Class 705/342 Business Documentation and
examined by Art Unit 3689 Business Methods. Claim 1 does not recite a
method of doing realty business procedure, but instead recites a computer
procedure for transferring generic pipelined data records that are each keyed
to computer data services customers (tenants) in a manner to maintain
consistency. This keying of data to customers is the only commerce related
aspect of the claims. But because this is a procedure in a commercial as well
as technological context, it is done for business reasons at least to that
extent, which accounts for the analysis below in Step 2A Prong 1. Absent a
recognition of this distinction in meaning, how the eligibility rejection arose
becomes more understandable.
Claims 1, 3–8, 10–12, 14–19, 21, and 22 rejected under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more
STEP 13
Claim 1, 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.

3 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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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
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 54. If the claims are directed to a judicial exception, then finally
determining whether the claims provide an inventive concept because the
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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 1 recites receiving and storing event data, determining if a process is
occurring, and if not, selecting and storing event data. Selecting and
determining data are rudimentary forms of analyzing data. Thus, claim 1
recites receiving, analyzing, and storing 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 1 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
extracts and synthesizes key concepts identified by the courts, abstract ideas
include (1) mathematical concepts4, (2) certain methods of organizing
human activity5, and (3) mental processes6. Among those certain methods of

4 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 America, Inc. v. InvestPic, LLC,
898 F.3d 1161, 1163 (Fed. Cir. 2018).
5 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).
6 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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organizing human activity listed in the Revised Guidance are commercial or
legal interactions. Like those concepts, claim 1 recites the concept of
managing commercial computer services tenant information. Specifically,
claim 1 recites operations that would ordinarily take place in advising one to
copy selected computer services tenant activity information based on policy
and time. The advice to copy selected tenant activity information based on
policy and time involves having tenants, which is an economic act, and
managing information about those tenants, which is an act ordinarily
performed in the stream of commerce. For example, claim 1 recites
“selecting . . . tenant identifier of the particular tenant,” which is an activity
that would take place whenever one is managing tenants commercially.
Similarly, claim 1 recites “determining to initiate an update process for the
particular tenant,” which is also characteristic of managing tenant data.
The Examiner determines the claims to be directed to comparing data
to determine when to apply rules. Non-Final Act. 5.
The preamble to claim 1 recites that it is a method of improving
accessibility and consistent preservation of data. The steps in claim 1 result
in copying selected tenant activity information based on policy and time.
As to the specific limitations, limitation 1 recites receiving data.
Limitations 2–4 recite generic and conventional receiving, analyzing, and
storing of tenant event data, which advise one to apply generic functions to
get to these results. The limitations thus recite advice for copying selected
tenant activity information based on policy and time. To advocate copying
selected tenant activity information based on policy and time is conceptual
advice for results desired and not technological operations.
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The Specification at paragraph 1 describes the invention as relating to
updating a target data storage unit with data available on a source data
storage unit. Thus, all this intrinsic evidence shows that claim 1 recites
managing commercial computer services tenant information. This is
consistent with the Examiner’s determination.
This in turn is an example of commercial or legal interactions as a
certain method of organizing human activity because managing tenant
information is part of commercial computer services tenancy. The concept
of managing commercial tenant information by copying selected tenant
activity information based on policy and time is one idea for maintaining
accurate data. The steps recited in claim 1 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. Mortg. Grader, Inc. v. First
Choice Loan Servs. Inc., 811 F.3d 1314, 1324 (managing property loan
data); Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d
1363, 1367 (2015)(tracking financial transactions).
From this we conclude that at least to this degree, claim 1 recites
managing commercial tenant information by copying selected tenant activity
information based on policy and time, which is a commercial and legal
interaction, one of certain methods of organizing human activity identified in
the Revised Guidance, and, thus, an abstract idea.
STEP 2A Prong 2
The next issue is whether claim 1 not only recites, but is more
precisely directed to this concept itself or whether it is instead directed to
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some technological implementation or application of, or improvement to,
this concept, i.e., integrated into a practical application.7
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).
Here we find that the claim does recite technological implementation
details and that the claim is directed to such implementation. Appellant
correctly argues that
Claim 1 includes features, such as determining whether a
previous update process for a particular tenant is in progression;
in response to determining, selecting, based on the particular
tenant specific update policy, one or more application events
based on the tenant identifier of the particular tenant. These
events indicate modified data records for the particular tenant,
from which data is selected from the source data storage unit to
be stored in the target data storage unit. Such storing of the data
makes data for the particular tenant at the target storage unit
consistent with data for the particular tenant at the source data
storage unit.
App. Br. 11.

7 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S.
175 (1981).
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The Specification describes the invention as generally relating to
updating a data storage unit. The disclosure relates more specifically to
techniques for updating a target data storage unit with data available on a
source data storage unit. Spec. para. 1.
The Specification goes on to describe the present state of the
technological field as one where
existing processes usually are incapable of providing variable
levels of control, including fine control, over copying data per
customer, in a multi-tenant architecture, at an interval that is
independent with respect to another customer. The inability to
provide such fine-grained control may force inefficient resource
allocation by the application service provider and prevents the
application service provider from updating target data storage
units, per customer, in near real-time. Lack of such fine-grained
control also fails the application service provider from ensuring
that data per customer is also consistent across source data
storage unit and target data storage unit in an efficient manner.
Spec. para. 5. Thus the problem being solved is a technological problem.
Claim 1, limitation 1 recites that each application event record
contains both a tenant identifier and an indication that the event is one of
data creation, modification, or deletion. Both the tenant and event identifiers
are data the computer process can directly react to as both refer to computer
process identifiers. The claim then recites that the data is stored at a data
pipeline data storage unit, meaning that subsequent processing will use such
data pipelining. This in itself is conventional, but the next step determines
whether a previous update process for a particular tenant is in progression,
which reflexively checks for problems the use of a pipeline might engender.
The next step only proceeds if there is no such previous update
process in progress, and so depends on the parallel computer processes being
checked. This step then selects an event record to react to. Again these
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events are one of data creation, modification, and deletion. So this step
reacts to a record of a computer process event. The next three steps then
select from the data referred to in the creation, modification or deletion
record to store such data, while ensuring consistency with the source of the
data.
Thus, rather than being directed to an abstract idea, the claim is
directed to a practical application that relies on the process directly reacting
to the nature of the computer processes invoked to determine how to
coordinate among different iterations and to select among the processes for
execution and data consistency.
REMAINING CLAIMS
Claim 1 is representative. The remaining method claims incorporate
claim 1. We conclude that the method claims at issue are directed to a
practical application. As to the structural claims, they are substantially
similar.
Claims 1, 3, 5–8, 12, 14, and 16–19 rejected under 35 U.S.C. § 103(a) as
unpatentable over Ikeda, Samuels, and Campbell
We are persuaded by Appellant’s argument that the prior art fails to
describe the limitations. Reply Br. 2–3. In particular, none of the references
describes “an application event indicates a tenant identifier and that data
records were created, modified, or deleted by the application program.”
App. Br. 21. The Examiner cites Samuels paragraphs 64–65. Non-Final
Act. 8. But this portion of Samuels refers to a policy identifier, not a user
identifier.
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Claims 4, 10, 15 and 21 rejected under 35 U.S.C. § 103(a) as unpatentable
over Ikeda, Samuels, Campbell, and Bruno
These claims depend from the independent claims in the prior
rejection.
Claims 11 and 22 rejected under 35 U.S.C. § 103(a) as unpatentable over
Ikeda, Samuels, Campbell, and Takeda
These claims depend from the independent claims in the prior
rejection.
CONCLUSIONS OF LAW
The rejection of claims 1, 3–8, 10–12, 14–19, 21, and 22 under 35
U.S.C. § 101 as directed to a judicial exception without significantly more is
improper.
The rejection of claims 1, 3, 5–8, 12, 14, and 16–19 under 35 U.S.C.
§ 103(a) as unpatentable over Ikeda, Samuels, and Campbell is improper.
The rejection of claims 4, 10, 15 and 21 under 35 U.S.C. § 103(a) as
unpatentable over Ikeda, Samuels, Campbell, and Bruno is improper.
The rejection of claims 11 and 22 under 35 U.S.C. § 103(a) as
unpatentable over Ikeda, Samuels, Campbell, and Takeda is improper.
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CONCLUSION
The rejection of claims 1, 3–8, 10–12, 14–19, 21, and 22 is reversed.
In summary:
Claims
Rejected
35 U.S.C. § Basis  Affirmed Reversed
1, 3–8, 10–12,
14–19, 21, 22
101 Eligibility  1, 3–8, 10–12,
14–19, 21, 22
1, 3, 5–8, 12,
14, 16–19
103 Ikeda,
Samuels,
Campbell
1, 3, 5–8, 12, 14,
16–19
4, 10, 15, 21 103 Ikeda,
Samuels,
Campbell,
Bruno
4, 10, 15, 21
11, 22 103 Ikeda,
Samuels,
Campbell,
Takeda
11, 22
Overall Outcome 1, 3–8, 10–12,
14–19, 21, 22

REVERSED