VMware, Inc.

Patent Trials and Appeals Board

Oct 27, 2020

14701217 - (D) (P.T.A.B. Oct. 27, 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.
14/701,217 04/30/2015 Mazda A. Marvasti C116 8521
152606 7590 10/27/2020
Olympic Patent Works PLLC
4979 Admiral Street
Gig Harbor, WA 98332
EXAMINER
SUN, YU-HSI DAVID
ART UNIT PAPER NUMBER
2895
MAIL DATE DELIVERY MODE
10/27/2020 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 MAZDA A. MARVASTI, ASHOT NSHAN HARUTYUNYAN,
NAIRA MOVSES GRIGORYAN, and ARNAK POGHOSYAN
Appeal 2019-002887
Application 14/701,217
Technology Center 2800
Before JEFFREY B. ROBERTSON, JAMES C. HOUSEL, and
BRIAN D. RANGE, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–22 under 35 U.S.C. § 101 as directed
to patent ineligible subject matter. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 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 VMware, Inc. Appeal
Brief (“Appeal Br.”) filed August 27, 2018, 1.
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CLAIMED SUBJECT MATTER
The invention relates “to automated management tools of data-
generating entities, and in particular, to methods and systems that estimate
abnormalities in time-series data.” Specification (“Spec.”) filed April 30,
2015, ¶ 1.2 In particular, these methods and systems estimate “a degree of
abnormality of a complex system based on historical time-series data
representative of the complex system’s past behavior and using the historical
degree of abnormality to determine whether or not a degree of abnormality
determined from current time-series data representative of the same complex
system’s current behavior is worthy of attention.” Id. ¶ 3.
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the claimed subject matter:
1. A method stored in one or more data-storage devices and
executed using one or more processors of a computing
environment to identify abnormal behavior of a complex
system, the method comprising:
computing estimated upper-threshold and lower-
threshold historical degrees of abnormality based on historical
time-series data, the historical time-series data represents one of
past behavior, performance, and usage of the complex system
retrieved from a data-storage device;
computing estimated current degree of abnormality based
on current time-series data, the current time-series data
represents one of current behavior, performance, and usage of
the complex system retrieved from a data-storage device;
comparing the estimated current degree of abnormality
with one of the estimated upper-threshold and lower-threshold

2 This Decision also cites to the Final Office Action (“Final Act.”) dated
March 26, 2018, the Examiner’s Answer (“Ans.”) dated December 11, 2018,
and the Reply Brief (“Reply Br.”) filed February 19, 2019.
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historical degrees of abnormality to determine whether one of
the current behavior, performance, and usage of the complex
system is abnormal; and
generating an alert when the complex system is
experiencing abnormal behavior, performance, or usage, the
alert indicating an out-of-control process of the complex system
that is worthy of attention.
Independent claim 7 recites a system comprising one or more data
storage devices storing machine readable instructions for performing a
process as in claim 1 when executed using one or more processors.
Independent claim 13 recites a method stored in one or more data
storage devices and executed using one or more processors for performing a
process similar to claim 1, and additionally computing a normalized total
relative distance for each upper and lower threshold event, as well as a mean
and a median of these normalized total relative distances, and computing
upper and lower threshold cumulative distributions or estimates of the
degree of abnormality for current time-series data using the computed mean
and median.
Independent claim 18 recites a non-transient computer readable
medium (“CRM”) encoded with machine readable instructions to implement
a method as in claim 13 by one or more processors of a computer system.
OPINION
The Examiner maintains the rejection of claims 1–22 under 35 U.S.C.
§ 101 as directed to patent ineligible subject matter. Final Act. 2–4.
We review the appealed rejection for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
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cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”). After considering the
argued claims relative to case law presented in this Appeal and each of
Appellant’s arguments, we are not persuaded that Appellant identifies
reversible error. Thus, we affirm the Examiner’s rejection for the reasons
expressed in the Final Office Action and the Answer. We add the following
primarily for emphasis.
Appellant argues the claims together as a group, primarily focusing on
the limitations of claim 1.3 Compare Appeal Br. 10–15 and 15–19. In
accordance with 37 C.F.R. § 41.37(c)(1)(iv), claims 2–22 stand or fall with
claim 1, which we select as representative in our opinion below.
The Rejection
The Examiner finds that claim 1 recites an abstract idea and identifies
the abstract idea as a mental process to identify abnormal behavior of a
complex system. Final Act. 2. Specifically, the Examiner identifies the
mental process as including the first three steps of claim 1, including the
upper and lower threshold computing step, the estimated current degree of
abnormality computing step, and the step of comparing the current degree of
abnormality to the computed thresholds. Id. at 2–3.
The Examiner further finds that the additional step of generating an
alert does not add significantly more to this abstract idea because it is merely
routine extra-solution activity, i.e., it is recited at a high level of generality

3 Although Appellant discusses the steps of claim 13 separately from claim
1, Appellant raises the same argument for both claims. See Appeal Br. 12–
13.
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and is merely a form of outputting a result of the mental process. Final Act.
3. In addition, the Examiner finds that claim 1 does not recite any particular
details of any sensors or particularly limit how data is collected and the
result is outputted. Id. The Examiner concludes that this additional step,
considered individually and in combination with the other steps, does not
make the claim significantly more than the mental process itself. Id. The
Examiner determines “[r]ather than being a particular limited application of
the abstract idea which serves to improve a specific method or device, the
claim would tend to monopolize the abstract idea itself in practice.” Id. at 4.
Appellant’s Arguments
Appellant raises a number of arguments with regard to this rejection.
Appeal Br. 5–17. Appellant argues that the Examiner erred in applying the
Alice4 two-part framework for assessing patent eligibility because:
1) The Examiner relied on PTO guidance as set forth in the
“December 2016: Interim Eligibility Guidance Quick Reference Sheet” (id.
at 7);
2) The Examiner erred by asserting that the first three steps of claim 1
are an abstract idea (id.);
3) The Examiner failed to analyze how claim 1 is analogous to cited
caselaw (id. at 7–8);
4) Claim 1 is not a mental process because it is directed to solving a
technological problem in complex systems (id. at 8–10);
5) The Examiner failed to search for an inventive concept in the
elements of claim 1 individually and as an ordered combination (id. at 11);

4 Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014).
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6) The Examiner erred in assuming that the inventive concept of claim
1 has to relate to a physical feature (id. at 12–13); and
7) The Examiner failed to produce evidence in support of the rejection
(id. at 13–16).
Legal Framework
An invention is patent eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice, 573 U.S. at 216.
In determining whether a claim falls within an excluded category, our
inquiry focuses on the Supreme Court’s two-step framework, described in
Mayo and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that
framework, we first determine what concept the claim is “directed to.” See
Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to the
concept of intermediated settlement, i.e., the use of a third party to mitigate
settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010)
(“Claims 1 and 4 in petitioners’ application explain the basic concept of
hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
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such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated 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. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (citation omitted). “A claim that
recites an abstract idea must include ‘additional features’ to ensure ‘that the
[claim] is more than a drafting effort designed to monopolize the [abstract
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idea].’” Id. (quoting Mayo, 566 U.S. at 77) (alterations in original).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The Office published revised guidance on the application of § 101.
USPTO’s January 7, 2019 Memorandum, 2019 Revised Patent Subject
Matter Eligibility Guidance (“Memorandum”), 84 Fed. Reg. 50. Consistent
with the guidance and applicable statute and precedent, we first look to
whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (e.g., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practices, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim recites a judicial exception and does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); 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.
See generally Memorandum.
Analysis
Applying the guidance set forth in the Memorandum along with
applicable precedent and statute, we conclude, as did the Examiner, that
claims 1–22 do not recite patent-eligible subject matter.
Revised Step 2A, Prong One–Directed to a Judicial Exception
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The Memorandum instructs us first to determine whether each claim
recites any judicial exception to patent eligibility. 84 Fed. Reg. at 54. The
Memorandum identifies three judicially-excepted groupings: (1)
mathematical concepts, (2) certain methods of organizing human activity
such as fundamental economic practices, and (3) mental processes. Id. at 52.
The Examiner finds claim 1 recites the abstract idea of a mental process to
identify abnormal behavior of a complex system. Final Act. 2. Therefore, we
primarily focus here on the third grouping—mental processes.
Claim 1 recites a method to identify abnormal behavior of a complex
system by comparing computed estimated upper and lower thresholds of
historical degrees of abnormality and estimated current degrees of
abnormality, and generating an alert when the complex system is
experiencing abnormal behavior, performance, or usage. This method recites
the abstract idea of a mental process, even though stored in data storage
device(s) and executed using processor(s) in a computing environment,
wherein the alert generating step merely presents the result of the
comparison.
As the Examiner finds, the computation steps and comparison step
may be completed in the human mind or with pencil and paper. The
computation steps require computing estimated upper and lower threshold
degrees of abnormality based on historical time-series data and an estimated
current degree of abnormality based on current time-series data. There is
nothing recited in claim 1 which indicates that the data cannot be visualized,
e.g., graphed, or numerically compared, so as to readily enable visually
identifying peaks and valleys of system behavior, performance, or usage,
thereby permitting a person to readily mentally estimate upper and lower
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thresholds of historical degrees of abnormality, as well as readily mentally
estimate the current degree of abnormality. Once the upper and lower
thresholds of historical degrees of abnormality and the current degree of
abnormality have been estimated, there is nothing recited in claim 1 which
indicates that these estimates cannot be mentally compared to determine
whether the current degree of abnormality is within or outside the upper and
lower thresholds. Each of the computing and comparing steps is recited at a
high level of generalization and merely provides information to be used in
the process. Providing information is a step that can be performed in the
human mind. As such, these steps are mental steps directed to a mental
process.
We further note that these steps are similar to other concepts the
courts have identified as abstract ideas, i.e., mathematical concepts and/or
mental processes. See Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
1138 (Fed. Cir. 2016) (methods of logic circuit design, comprising
converting a functional description of a level sensitive latch into a hardware
component description of the latch); Digitech Image Techs., LLC v. Elecs.
for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014) (organizing information
through mathematical correlations). In Electric Power Group, our reviewing
court explained that concepts of collecting and analyzing information, when
broadly claimed, fall within the “realm of abstract ideas”:
Information as such is an intangible. See Microsoft Corp. v. AT
& T Corp., 550 U.S. 437, 451 n.12 . . . (2007); Bayer AG v.
Housey Pharm., Inc., 340 F.3d 1367, 1372 (Fed. Cir. 2003).
Accordingly, we have treated collecting information, including
when limited to particular content (which does not change its
character as information), as within the realm of abstract ideas.
See, e.g., Internet Patents, 790 F.3d at 1349; OIP Techs., Inc. v.
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Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015);
Content Extraction & Transmission LLC v. Wells Fargo Bank,
Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014); Digitech
Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344,
1351 (Fed. Cir. 2014); CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011). In a similar vein,
we have treated analyzing information by steps people go
through in their minds, or by mathematical algorithms, without
more, as essentially mental processes within the abstract-idea
category. See, e.g., TLI Commc’ns, 823 F.3d at 613; Digitech,
758 F.3d at 1351; SmartGene, Inc. v. Advanced Biological
Labs., SA, 555 F. App’x 950, 955 (Fed. Cir. 2014); Bancorp
Servs., L.L.C. v. Sun Life Assurance Co. of Canada (U.S.), 687
F.3d 1266, 1278 (Fed. Cir. 2012); CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1372 (Fed. Cir. 2011); SiRF
Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319, 1333 (Fed.
Cir. 2010); see also Mayo, 132 S. Ct. at 1301; Parker v. Flook,
437 U.S. 584, 589–90 . . . (1978); Gottschalk v. Benson, 409
U.S. 63, 67 . . . (1972). And we have recognized that merely
presenting the results of abstract processes of collecting and
analyzing information, without more (such as identifying a
particular tool for presentation), is abstract as an ancillary part
of such collection and analysis. See, e.g., Content Extraction,
776 F.3d at 1347; Ultramercial, Inc. v. Hulu, LLC, 772 F.3d
709, 715 (Fed. Cir. 2014).
Electric Power Group, LLC v. Alstom, S.A., 830 F.3d 1350, 1353–54 (Fed.
Cir. 2016).
Appellant attempts to distinguish the steps of claim 1 from those of
Electric Power Group which Appellant characterizes as including “vague
steps of ‘detecting and analyzing events’ and ‘displaying event analysis
results’ or the equivalents of such operations.” Appeal Br. 8.5 We disagree.

5 Appellant likewise attempts to distinguish over PerkinElmer Inc. v. Intema
Ltd., 496 Fed. Appx. 65 (Fed. Cir. 2012), initially (and correctly) noting that
the Examiner fails to properly cite to this decision. See Appeal Br. 7; Reply
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As indicated above, the computing and comparing steps merely analyze and
provide information, upper and lower thresholds of historical degrees of
abnormality and current degree of abnormality, to be used in the process.
These steps are no less “vague,” or more appropriately, no less capable of
human mental operation as, for example, Electric Power Group’s claim 12
reciting a step of
detecting and analyzing events in real-time from the
plurality of data streams from the wide area based on at least
one of limits, sensitivities and rates of change for one or more
measurements from the data streams and dynamic stability
metrics derived from analysis of the measurements from the
data streams including at least one of frequency instability,
voltages, power flows, phase angles, damping, and oscillation
modes, derived from the phasor measurements and the other
power system data sources in which the metrics are indicative
of events, grid stress, and/or grid instability, over the wide area.
Electric Power Group 830 F.3d at 1352.
Thus, contrary to Appellant’s arguments, the Examiner’s
identification of the judicial exception which the claims recite—a mental
process to identify abnormal behavior of a complex system—is supported by
a preponderance of the evidence and is sufficiently identified as required by
the Memorandum.
Accordingly, applying the guidance in the Memorandum, we conclude
that claim 1 recites an abstract idea, i.e., a mental process, and thus recites a
judicial exception.
Revised Step 2A, Prong Two–Practical Application

Br. 4–5. For the reasons Appellant provides in the Reply Brief, we agree that
PerkinElmer is not controlling here and, therefore, we need not further
address this decision.
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Having determined that claim 1 recites the abstract concept of a
mental process for identifying abnormal behavior of a complex system, we
next look to determine whether the claims recite “additional elements that
integrate the judicial exception into a practical application.” MPEP
§ 2106.05(a)–(c), (e)–(h); Memorandum, 84 F.3d at 53–54. Integration into a
practical application requires an additional element or a combination of
additional elements in the claim to “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.” Memorandum, 84 Fed. Reg. at 53–54;
see also id. at 55 (setting forth exemplary considerations indicative that an
additional element or combination of elements may have integrated the
judicial exception into a practical application).
Here, we find none. We find that the additional elements claim 1
recites do not integrate the judicial exception into a practical application.
Even if the alert generating step were an additional element, it does not
integrate the mental process into a practical application because, as the
Examiner finds, this step is recited at a high level of generality and is merely
routine extra-solution activity. In this regard, we note that the method of
claim 1 does not impose any action on the part of the complex system in
response to the alert.
We note that claim 1 further recites that the method is stored on one or
more data storage devices and is executed on one or more processors. These
additional elements are recited at a high level of generality. The
Specification teaches that the one or more data-storage devices may be any
of a wide variety of devices including electronic memory, optical or
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magnetic disk drive, USB drive, flash memory and other such data-storage
devices. Spec. ¶ 90. Moreover, the Specification merely teaches that the
method may be executed on one or more processors, but does not disclose
any details for such processors, other than that they may be part of a
computing or processing system. Id. These devices merely perform the
method of claim 1, which recites a judicial exception, i.e., a mental process.
Implementing an abstract idea, such as a mental process, on generic data
storage devices and processors or a general purpose computer, does not
amount to significantly more than the abstract idea. Alice, 573 U.S. at 222
(“simply implementing [an abstract concept] on a physical machine, namely
a computer, [i]s not a patentable application of that [concept].”) (quoting
Mayo, 566 U.S. at 84, and citing Benson, 409 U.S. at 71).
In addition, claim 1 does not limit the scope of the field in which the
method is performed. Claim 1 merely recites that the method identifies
abnormal behavior of a complex system, without limiting what the complex
system is. The Specification does not define what a complex system is, but
provides examples of complex systems including weather systems,
ecosystems, biological systems, business operations, information
technology, systems monitored by one or more sensors, and cloud
computing systems. Spec. ¶ 2. Given the diversity of possibilities for a
complex system, it is all the more apparent that claim 1 is not more than a
drafting effort designed to monopolize the judicial exception.
Further, implementing the abstract idea on a system comprising a
generic data storage devices and generic processors does not transform it
into a patentable apparatus; the idea remains a pre-empted mental process.
Alice, 573 U.S. at 216 (“We have described the concern that drives this
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exclusionary principle as one of pre-emption.”) (quoting Bilski, 561 U.S. at
612 (“[U]pholding the patent ‘would pre-empt use of this approach in all
fields, and would effectively grant a monopoly over an abstract idea.’”)).
Here, the calculation of reflectance and transmittance values for a material
of the claims is an abstract idea, and the use of a general computer does not
transform the nature of the abstract mathematical relationship into something
that is patent eligible.
Notably, the claims do not recite, the Specification does not describe,
and Appellant does not assert an improvement to the functioning of a
computer. Nor are the additional elements directed to a particular machine or
transformation. However, Appellant does argue that the claims describe a
solution to a technological problem. Appeal Br. 9. Additionally, Appellant
describes the technological problem more narrowly than recited in claim 1.
Appellant asserts that the claims solve the technological problem of
identifying abnormalities in computer systems that are worthy of attention,
as opposed to abnormalities that do not require attention. Claim 1 is not
limited in its scope of complex systems to computer systems. Further, claim
1 does not provide any standard by which the upper and lower thresholds of
historical degrees of abnormalities are computed. In other words, there is no
limit within claim 1 by which the alert is generated to draw attention to a
particular objective state of abnormality. As such, to the extent that the
method of claim 1 solves a technological problem, the claimed process
merely says “solve it.” Further, as we indicated above, the method does not
require any step of applying the alert to solve any problem.
Accordingly, we conclude, as did the Examiner, that claim 1 recites a
judicial exception, i.e., the abstract idea of a mental process for identifying
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abnormal behavior of a complex system, and does not integrate this judicial
exception into a practical application.
Step 2B–Inventive Concept
Because we determine that claim 1 recites an abstract idea and does
not include additional elements that integrate the abstract idea into a
practical application, we look to whether each claim provides an inventive
concept, i.e., adds a specific limitation beyond the judicial exception that is
not “well-understood, routine, conventional” in the field. Memorandum, 84
Fed. Reg. at 56. Again, we find none. Although claim 1 recites one or more
data storage devices and one or more processors, Appellant neither argues
nor otherwise establishes that these devices were not well-understood,
routine, and conventional.
To the contrary, Appellant discloses that these devices encompass any
device capable of performing the recited functions, thus recognizing the
well-understood, routine, and conventional nature of the data storage devices
and processors that may implement claim 1’s mental process. See TLI
Commc’ns LLC v. AV Auto. LLC, 823 F.3d 607 (Fed. Cir. 2016). As noted
above, the Specification teaches that the data storage devices may be any
one or more of a wide variety of devices configured to store or hold data,
including an electronic memory, optical or magnetic disk drive, USB drive,
flash memory and other such data-storage devices. Spec. ¶ 90. Moreover, the
processor is disclosed generically and, therefore, would have been
understood to be any type of computing or processing system. Id. These
devices are merely configured so as to perform the method of claim 1, and
clearly encompass well-understood, routine, and conventional devices.
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Appellant argues that the Examiner failed to search for an inventive
concept in the elements of the claims individually and as an ordered
combination of elements. Appeal Br. 11. Appellant also contends that the
Examiner “appears to be operating under the erroneous assumption that the
inventive concept . . . has to be a physical feature.” Id., citing Enfish LLC v.
Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016).
Although we agree that the inventive concept may be defined not just
by particular physical features but also by logical structures and processes,
we are not persuaded that claim 1 recites an inventive concept in its
elements, either individually or as an ordered combination. As explained
above, we find that method steps recited in claim 1 are directed to a judicial
exception, namely a mental process for identifying abnormal behavior of a
complex system. As also explained above, even if the alert generation step is
not part of this mental process, this step is recited at a high level of
generality and is merely post-solution activity. Claim 1 does not recite any
particular form of this generated “alert” nor any particular action that must
be taken in response thereto. Appellant does not direct our attention to any
inventive concept recited in claim 1 beyond the judicial exception, nor do we
find any.
Appellant’s final argument that the Examiner failed to consider and
produce evidence under this step that a claim element or combination of
elements is well-understood, routine, and conventional to those skilled in the
relevant art. Appeal Br. 13–16. We disagree. The record before us is
sufficiently clear that the additional elements of claim 1, i.e., the data storage
devices, the processors, and the alert generating step, are indeed well-
understood, routine, and conventional. For example, the Examiner identified
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that the alert generating step is recited at a high level of generality and is
insignificant extra-solution activity. In addition, the Examiner finds that
claim 1 does not limit the alert to any particular form of output. Appellant
neither disputes these findings, nor asserts that the generation of an alert is
not well-understood, routine, and conventional.
With regard to the other two additional elements of claim 1, the data
storage devices and the processors, we note that these devices are recited at a
high level of generality and are generically disclosed in the Specification, as
discussed above. In addition, as set forth above, the courts have recognized
that merely implementing a judicial exception on a generic machine such as
a computing system (having both data storage and processor) fails to provide
an inventive concept to an otherwise patent ineligible process.
Accordingly, we conclude that method claim 1 is directed to patent
ineligible subject matter under 35 U.S.C. § 101. Claim 1 ensnares the
abstract idea of a mental process for identifying abnormal behavior of a
complex system and does not recite additional elements that integrate this
mental process into a practical application; the idea remains a pre-empted
mental process. Alice, 573 U.S. 208, 216 (2014) (“We have described the
concern that drives this exclusionary principle as one of pre-emption.”)
(quoting Bilski, 561 U.S. at 612 (“[U]pholding the patent ‘would pre-empt
use of this approach in all fields, and would effectively grant a monopoly
over an abstract idea.’”)). Here, the computation of upper and lower
thresholds of historical degrees of abnormalities and current degree of
abnormality, comparison of the current degree to the upper and lower
thresholds, and generation of an alert when the current degree is outside the
thresholds as recited in claim 1 is an abstract idea, and the use of general
Appeal 2019-002887
Application 14/701,217

19
data storage devices and processes does not transform the nature of the
abstract mental process into something that is patent eligible.
CONCLUSION
Upon consideration of the record and for the reasons set forth above
and in the Final Office Action and the Examiner’s Answer, the Examiner’s
decision to reject claims 1–22 under 35 U.S.C. § 101 is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–22 101 Subject Matter
Eligibility
1–22

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED