Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR
1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on May 13, 2026 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1 and 5-10 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Independent claim 1 recites the limitation “the normalized number of events.” There is insufficient antecedent basis for this limitation in the claims. For purposes of examination, the examiner is interpreting “the normalized number of events” as “a normalized number of events.”
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 5-12, and 14-24 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 1 recites a mental process because the claim recites a method that includes determining, based at least in part on the plurality of event logs and for individual pairs of the two or more intervals associated with the period of time, a distance metric; determining, based at least in part on the plurality of event logs, one or more entropy metrics associated with the period of time; determining, based at least in part on the plurality of event logs, a number of events associated with each of the two or more intervals associated with the period of time; generating, based at least in part on the one or more entropy metrics, a normalized entropy metric associated with the period of time; generating, based at least in part on the distance metric associated with the individual pairs of intervals, a normalized distance metric for the individual pairs of intervals; and determining, based at least in part on the normalized distance metric, the normalized entropy metric, and the normalized number of events, an entropic load associated with the plurality of event logs over the period of time; generating, based at least in part on the entropic load, a visual representation of the entropic load ; and detecting a deviation or change within the entropic load based at least in part on comparing the entropic load to one or more thresholds, the one or more thresholds determined based at least in part on historical entropy data, historical entropy metrics, or historical entropic loads captured or generated over time. This is a method of evaluation that can be performed in the human mind and with pencil and paper. In addition, these limitations, as drafted, are processes that, under its broadest reasonable interpretation, covers mathematical concepts. Thus, the claim falls within the “Mathematical Concepts” and “Mental Processes” groupings of abstract ideas.
This judicial exception is not integrated into a practical application. Claim 1 recites the additional elements of receiving a plurality of event logs associated with a period of time, the period of time having two or more intervals; causing the visual representation of the entropic load to be presented on a display of a user device; and responsive to detecting the deviation or change within the entropic load, sending an alert to the user device and causing a corresponding visual representation associated with the entropic load and one or more intervals at which the deviation or change was detected to be presented on the display of the user device. These limitations do not integrate the judicial exception into a practical application. Instead, the process of receiving, sending and displaying information merely add insignificant extra-solution activity to the judicial exception. The courts have recognized the following functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity: i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) ("Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink." (emphasis added)); iv. Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93. Accordingly, alone and in combination, these additional elements do not integrate the abstract idea into a practical application. The claim is directed to an abstract idea.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed with respect to Step 2A, the additional elements of receiving, sending and displaying information merely add insignificant extra-solution activity to the judicial exception. Thus, even when viewed as a whole, nothing in the claim adds significantly more (i.e., an inventive concept) to the abstract idea. The claim is ineligible.
Claims 5-10 and 22-23 are directed to substantially the same abstract idea as claim 1 and are rejected for substantially the same reasons. Claim 5 further narrows the abstract idea of claim 1 by e.g., defining the distance metric is one or more of the following: a Jensen-Shannon Distance, a Kullback-Leibler Distance, a Hellinger Distance, a Total Variation Distance, a Wasserstein Distance, a Bhattacharyya Distance, or Kolmogorov-Smirnov Distance. Claim 6 further narrows the abstract idea of claim 1 by e.g., defining the normalization technique one or more of a Min-Max Scaling or Sigmoid Function. Claims 7 and 9 further narrow the abstract idea of claim 1 by e.g., defining the first interval associated with the period of time and the event logs used in the calculations. Claims 8 and 10 further narrow the abstract idea of claim 1 by e.g., defining visual representations associated with the plurality of events and the summed distance metric. Claim 22 further narrows the abstract idea of claim 1 by e.g., defining determining a time series visual representation. Claim 23 further narrows the abstract idea of claim 1 by e.g., defining generating a visual representation of the normalized distance metric.
These limitations, as drafted, are processes that, under its broadest reasonable interpretation, covers mathematical concepts and mental processes that can be performed in the human mind and/or with pencil and paper. Thus, claims 2-10 and 22-23 are directed to substantially the same abstract idea as claim 1 and do not add any additional elements to evaluate at Steps 2A prong two or 2B.
Claims 22-23 recite the additional elements of causing data to be presented on the display.
These limitations do not integrate the judicial exception into a practical application. Instead, the process of receiving and displaying information merely adds insignificant extra-solution activity to the judicial exception. The courts have recognized the following functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity: i. Receiving or transmitting data over a network,
e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) ("Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink." (emphasis added)); iv. Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93. Accordingly, alone and in combination, these additional elements do not integrate the abstract idea into a practical application. Therefore, claims 2-10 and 22-23 describe neither a practical application of nor significantly more than the abstract idea.
Independent claim 11 recites a mental process because the claim recites a method that includes determining, based at least in part on the plurality of event logs, one or more entropy metrics associated with the period of time; determining, based at least in part on the plurality of event logs, a number of events associated with individual intervals of the two or more intervals; determining, for individual pairs of the two or more intervals associated with the period of time, a distance metric; determining, based at least in part on the one or more entropy metrics, the distance metric for the pairs of intervals, and the number of events for individual intervals, an entropic load associated with the plurality of event logs over the period of time; determining, based at least in part on the plurality of entropic load, a time series visual representation associated with the plurality of events; and detecting a deviation or change within the entropic load. This is a method of evaluation that can be performed in the human mind and with pencil and paper. In addition, these limitations, as drafted, are processes that, under its broadest reasonable interpretation, covers mathematical concepts. Thus, the claim falls within the “Mathematical Concepts” and “Mental Processes” groupings of abstract ideas.
This judicial exception is not integrated into a practical application. The claims as a whole merely describe how to generally “apply” the determining, detecting and presenting processes in a computer environment. The mere nominal recitation of a display; a user interface; one or more processors; and one or more non-transitory computer readable media storing instructions executable by the one or more processors are merely invoked as tools to perform the claimed method. Simply implementing the abstract idea on a generic computer is not a practical application of the abstract idea. Accordingly, alone and in combination, these additional elements do not integrate the abstract idea into a practical application. The claim is directed to an abstract idea.
Claim 11 recites the additional elements of receiving a plurality of event logs associated with a set of agents for a period of time, the period of time having two or more intervals; causing the time series visual representation to be presented on the display; and responsive to detecting the deviation or change within the entropic load, sending an alert to the user device. These limitations do not integrate the judicial exception into a practical application. Instead, the process of receiving, sending and displaying information merely adds insignificant extra-solution activity to the judicial exception. The courts have recognized the following functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity: i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) ("Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink." (emphasis added)); iv. Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93. Accordingly, alone and in combination, these additional elements do not integrate the abstract idea into a practical application. The claims are directed to an abstract idea.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed with respect to Step 2A, the additional elements of receiving, sending and displaying information merely add insignificant extra-solution activity to the judicial exception. Thus, even when viewed as a whole, nothing in the claim adds significantly more (i.e., an inventive concept) to the abstract idea. The claim is ineligible.
Claims 12, 14-16, and 24 are directed to substantially the same abstract idea as claim 11 and are rejected for substantially the same reasons. Claim 12 further narrows the abstract idea of claim 11 by e.g., defining the distance metric is a Jensen-Shannon Distance. Claim 14 further narrows the abstract idea of claim 11 by e.g., defining generating a normalized entropy metric, a normalized number of events, a normalized distance metric associated with the period of time. Claim 15 further narrows the abstract idea of claim 11 by e.g., defining visual representations associated with the plurality of events and the entropic load. Claim 16 further narrows the abstract idea of claim 11 by e.g., defining the pairs of intervals associated with the period of time. Claim 24 further narrows the abstract idea of claim 11 by e.g., generating a visual representation associated with the individual one of the plurality of event logs. These limitations, as drafted, are processes that, under its broadest reasonable interpretation, covers mathematical concepts and mental processes that can be performed in the human mind and/or with pencil and paper. Thus, claims 12, 14-16, and 24 are directed to substantially the same abstract idea as claim 11 and do not add any additional elements to evaluate at Steps 2A prong two or 2B.
Claim 24 recites the additional elements of causing data to be presented on a display. This limitation does not integrate the judicial exception into a practical application. Instead, the process of displaying information merely adds insignificant extra-solution activity to the judicial exception. The courts have recognized the following functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity: i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) ("Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink." (emphasis added)); iv. Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93. Accordingly, alone and in combination, this additional element does not integrate the abstract idea into a practical application. Therefore, claims 12, 14-16, and 24 describe neither a practical application of nor significantly more than the abstract idea.
Independent claim 17 recites a mental process because the claim recites a method that includes assigning individual events of a plurality of events associated with a period of time to an individual interval of the period of time; determining the number of events assigned to each of the individual intervals of the period of time; determining, based at least in part on the plurality of events, an entropy metric associated with individual intervals of the period of time; determining, for individual pairs of intervals associated with the period of time, a distance metric; determining, based at least in part on the number of events for one or more of the individual intervals, the entropy metric associated with one or more of the individual intervals, and the distance metric for one or more pairs of intervals, an entropic load associated with the period of time; generating, based at least in part on the entropic load, a visual representation of the entropic load; and detecting a deviation or change within the entropic load. This is a method of evaluation that can be performed in the human mind and with pencil and paper. In addition, these limitations, as drafted, are processes that, under its broadest reasonable interpretation, covers mathematical concepts. Thus, the claim falls within the “Mathematical Concepts” and “Mental Processes” groupings of abstract ideas.
Claim 17 recites the additional element of causing the time series visual representation to be presented on a display of a user device and responsive to detecting the deviation or change within the entropic load, sending an alert to the user device. These limitations do not integrate the judicial exception into a practical application. Instead, the process of displaying and sending information merely adds insignificant extra-solution activity to the judicial exception. The courts have recognized the following functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity: i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) ("Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink." (emphasis added)); iv. Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93. Accordingly, alone and in combination, these additional elements do not integrate the abstract idea into a practical application. The claim is directed to an abstract idea.
Claims 18-21 are directed to substantially the same abstract idea as claim 17 and are rejected for substantially the same reasons. Claim 18 further narrows the abstract idea of claim 17 by e.g., defining generating a normalized distance metric, a normalized entropy metric, and a normalized number of events. Claim 19 further narrows the abstract idea of claim 17 by e.g., defining causing a visual representation of the summed distance metric and the summed entropy metric. Claim 20 further narrows the abstract idea of claim 17 by e.g., defining the pairs of intervals associated with the period of time. Claim 21 further narrows the abstract idea of claim 17 by e.g., defining normalized distance metric. These limitations, as drafted, are processes that, under its broadest reasonable interpretation, covers mathematical concepts and mental processes that can be performed in the human mind and/or with pencil and paper. Thus, claims 18-21 are directed to substantially the same abstract idea as claim 17 and do not add any additional elements to evaluate at Steps 2A prong two or 2B. Therefore, claims 18-21 describe neither a practical application of nor significantly more than the abstract idea.
Novel & Non-Obvious Subject Matter
Claims 1 and 5-10 would be allowable if rewritten to overcome the 35 U.S.C. 101 and the 35 U.S.C. 112 rejections.
The following is a statement of reasons for the indication of allowable subject matter:
Independent claim 1 would be allowable for disclosing generating, based at least in part on the one or more entropy metrics, a normalized entropy metric associated with the period of time; generating, based at least in part on the number of events for each interval, a normalized number of events associated with the period of time; and determining, based at least in part on the normalized distance metric, the normalized entropy metric, and the normalized number of events, an entropic load associated with the plurality of event logs over the period of time.
Claim 14 would be allowable if rewritten to overcome the 35 U.S.C. 101 rejection. Claim 14 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claims and any intervening claims, and rewritten to overcome the 35 U.S.C. 101 rejections. Claim 14 would be allowable for disclosing
generating, based at least in part on the one or more entropy metrics, a normalized entropy
metric associated with the period of time; and determining, based at least in part on the one or more entropy metrics, the distance metric for the pairs of intervals, and the number of events for individual intervals, an entropic load associated with the plurality of event logs over the period of time.
Claim 18 would be allowable if rewritten to overcome the 35 U.S.C. 101 rejection. Claim 18 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claims and any intervening claims, and rewritten to overcome the 35 U.S.C. 101 rejections. Claim 18 would be allowable for disclosing
generating, based at least in part on the one or more entropy metric associated with the
individual intervals, a normalized entropy metric for the period of time; determining, based at least in part on the number of events for one or more of the individual intervals, the entropy metric associated with one or more of the individual intervals, and the distance metric for one or more pairs of intervals, an entropic load associated with the period of time.
Kaplan US 20090099820 A1 teaches generating, based at least in part on the distance metric associated with the individual pairs of intervals, a normalized distance metric. Additionally, Kaplan teaches determining entropy metrics associated with the period of time, and determining a number of events associated with each of the two or more intervals associated with the period of time. However, the cited art does not teach determining an entropic load associated with the plurality of event logs over the period of time based at least in part on the normalized distance metric, the normalized entropy metric, and the normalized number of events.
Response to Arguments
Applicant’s arguments regarding the previous 35 U.S.C. 112 rejections have been fully considered but they are not persuasive. Applicant fails to provide any support or arguments to uphold their conclusory statement.
Regarding the 35 U.S.C. 101 rejections, Applicant argues that “[a] human mind cannot ‘generating, based at least in part on the entropic load, a visual representation of the entropic load’ nor cause ‘the visual representation of the entropic load to be presented on a display of a user device” (p. 13). The Examiner notes that the courts consider a mental process that “can be performed in the human mind, or by a human using a pen and paper” to be an abstract idea. MPEP 2106.04(a)(2) (citing CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011)).
Applicant argues that “[a] human mind cannot practically send alerts to user devices” (p. 14). As described more fully above, the claim limitation “sending an alert to the user device” is an additional element that is not a part of the abstract idea.
Applicant argues that “the human mind is not equipped to detect deviations within entropic loads” (p. 14). Applicant fails to provide any support or arguments to uphold their conclusory statement. At any rate, the Examiner notes that the human mind can detect information that is presented on a display.
Applicant argues that “the instant claims, as amended, do integrate the alleged abstract idea into a practical application at least by improving at least one technical field, specifically, visualization of entropy data associated with a collection of related activities or events … improve the field of visualization” (pp. 15-17). The Examiner disagrees. Displaying data does not improve the functioning of a computer, or to any other technology or technical field – see MPEP 2106.05(a).
Applicant argues that the claims are analogous to claims that have been found eligible in SRI Int'l, Inc. v. Cisco Systems, Inc., 930 F.3d 1295, 1303 (Fed. Cir. 2019) (pp. 17-19). The Examiner disagrees because the claims in SRI are distinguishable from the present claims. In SRI, the Court found that claims do not recite a mental process when they do not contain limitations that can practically be performed in the human mind, for instance when the human mind is not equipped to perform the claim limitations. To the contrary, as described more fully above, the present claims can be performed in the human mind and with pencil and paper.
Applicant argues that the claims are analogous to claims that have been found eligible in Finjan Inc. v. Blue Coat Systems, Inc., 879 F.3d 1299 (Fed. Cir. 2018) (pp. 18-19). The Examiner disagrees because the claims in Finjan are distinguishable from the present claims. In Finjan, the Court found that claims were directed to an improvement in the functioning of a computer or an improvement to another technology (i.e., computer virus scanning). To the contrary, as described more fully above, the present claims do not improve the functioning of a computer, or to any other technology or technical field.
Applicant argues that the claims are analogous to eligible claims in USPTO Subject Matter Eligibility Example 49 (pp. 19-21). The Examiner disagrees because the claims in Example 49 are distinguishable from the present claims. In Example 49, the claims are eligible because they integrate the abstract idea into a practical application that improves a method of medical treatment (i.e., application of Compound X eye drops). The present claims do not provide an improvement in medical treatment.
Applicant argues that the claims are analogous to claims that have been found eligible in BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1350-51, 119 USPQ2d 1236, 1243 (Fed. Cir. 2016) because they “recite a technology-based solution for monitoring system/process complexity” (pp. 21-22). The Examiner disagrees. Contrary to the position taken by Applicant, as described more fully above, the present claims do not improve the functioning of a computer, or to any other technology or technical field.
Applicant argues that the claims are analogous to claims that have been found eligible in Ancora Techs., Inc. v. HTC Am., Inc., 908 F.3d 1343, 1348-49 (Fed. Cir. 2018) (p. 23). The Examiner disagrees. Contrary to the position taken by Applicant, as described more fully above, the present claims do not improve the functioning of a computer, or to any other technology or technical field.
Applicant argues that the claims are eligible because they recite additional elements that are not “well-understood, routine, conventional activity in the field.” Specifically, Applicant argues that:
[t]he instant claims recite a non-conventional combination of entropy analysis, threshold-based anomaly detection, and responsive alerting that includes “specific limitation[s] other than what [was] well-understood, routine and conventional" in the field of visualization of entropy data associated with a collection of related activities or events at the time the priority application was filed and enable new functionality that was not possible at the time the priority application was filed
(p. 24 (emphasis added)). The Examiner disagrees.
With regards to the entropy analysis and threshold-based anomaly detection, any purported inventive concept has to be an additional element that is not part of the abstract idea. In the present claims, there is no inventive concept that is in addition to (i.e., not a part of) the abstract idea. For instance, the entropy analysis and threshold-based anomaly detection cited by Applicant in the preceding paragraph are part of the abstract idea (i.e., the process steps fall within the “Mathematical Concepts” and “Mental Processes” groupings of abstract ideas). If the purported inventive concept is part of the abstract idea, it is not an “additional element” under Step 2B. Therefore, even assuming arguendo that the abstract limitations were novel/non-obvious, “a claim for a new abstract idea is still an abstract idea.” Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016).
Regarding the “alerting,” this limitation merely adds insignificant extra-solution activity to the judicial exception. The courts have recognized the following functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity: i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) ("Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink." (emphasis added)); iv. Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93. Accordingly, alone and in combination, these additional elements do not integrate the abstract idea into a practical application.
Applicant argues that “[t]he Examiner has acknowledged that ‘Claims 1 and 5-10 would
be allowable if rewritten to overcome the 35 U.S.C. 101 and the 35 U.S.C. 112 rejections;” and that “[i]f the ordered combination is not even found in the prior art, it cannot reasonably be characterized as well-understood, routine, and conventional activity” (pp. 25-26). Again, the claim elements cited by Applicant are part of the abstract idea (i.e., the process steps fall within the “Mathematical Concepts” and “Mental Processes” groupings of abstract ideas) and are not “additional elements” under Step 2B.
Applicant argues that:
the Examiner has not provided any of the four categories of Berkheimer evidence showing that the ordered combination of: (i) detecting a deviation or change within the entropic load based at least in part on comparing the entropic load to one or more thresholds determined from historical entropy data, historical entropy metrics, or historical entropic loads captured or generated over time; (ii) sending an alert
to the user device responsive to detecting the deviation or change; and (iii) causing a corresponding visual representation associated with the entropic load and one or more intervals at which the deviation or change was detected to be presented on the display of the user device is well understood, routine, and conventional
(p. 29). The Examiner disagrees. Regarding claim elements (i) and (iii), as discussed above, the claim elements cited by Applicant are part of the abstract idea (i.e., the process steps fall within the “Mathematical Concepts” and “Mental Processes” groupings of abstract ideas) and are not “additional elements” under Step 2B. Regarding claim element (ii), as discussed above, the courts have recognized the following functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity: i. Receiving or transmitting data over a network (e.g., sending an alert).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DUANE MOORE whose telephone number is (571)272-7544. The examiner can normally be reached on Mon-Fri 9:00-5:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JEFFREY ZIMMERMAN can be reached on (571)272-4602. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/D.N.M./Examiner, Art Unit 3628
/GEORGE CHEN/Primary Examiner, Art Unit 3628
Prosecution Insights