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 .
Detailed Action
Claims 1-20 have been submitted for examination
Claims 1-20 have been rejected.
Double Patenting
The non-statutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a non-statutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1-20 are rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,393,492
The subject matter claimed in the instant application is fully disclosed in the patent and is covered by the patent since the patent and the application are claiming common subject matter and the patent anticipates the present application because the current claims are broad compared to the patent, as follows:
based on determining that the backup is to be performed and after initiation of the backup, capturing current execution information associated with the source system at a point in time, wherein the current execution information provides a view of one or more computer processes at the source system at the point in time; analyzing the captured current execution information to determine one or more indications of an exploitation by the malicious software associated with the source system
“A later patent claim is not patentably distinct from an earlier patent claim if the later claim is obvious over, or anticipated by, the earlier claim. In re Longi, 759 F.2d at 896, 225 USPQ at 651 (affirming a holding of obviousness-type double patenting because the claims at issue were obvious over claims in four prior art patents); In re Berg, 140 F.3d at 1437, 46 USPQ2d at 1233 (Fed. Cir. 1998) (affirming a holding of obviousness-type double patenting where a patent application claim to a genus is anticipated by a patent claim to a species within that genus). “ ELI LILLY AND COMPANY v BARR LABORATORIES, INC., United States Court of Appeals for the Federal Circuit, ON PETITION FOR REHEARING EN BANC (DECIDED: May 30, 2001).
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 therefore, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claims fall within at least one of the four categories of patent eligible subject matter. However, the claimed invention is directed to performing a mental process that is based on mathematical calculations without significantly more.
The following is an analysis of the claims regarding subject matter eligibility in accordance with the 2019 Revised Patent Subject Matter Eligibility Guidance (2019)
Subject Matter Eligibility Analysis
Step 1: Do the Claims Specify a Statutory Category?
Claim 1 recites a method, claim 16 recites a computer program product and claim 20 recites a system, satisfying step of the analysis.
Step 1: Do the Claims Specify a Statutory Category?
The limitations describe processes that, under their broadest reasonable interpretation, cover performance of the limitations in the human mind but for the recitation of generic computer components (i.e., use of a processor or a generic computer). That is, nothing in the claim elements preclude the steps from practically being performed in the mind. The limitations involve making evaluations of the obtained data based on math, determine values using mathematical concepts, thereby describing an observation and evaluation by taking an action. Such an observation and/or evaluation of data can be performed by a human and recites a mental process.
If a claim limitation, under its broadest reasonable interpretation, covers the practical performance of the limitation in the human mind but for the recitation of generic computer components, then it is “Mathematical concept” to implement a “Mental process” grouping of abstract ideas. See the 2019 Revised Patent Subject Matter Eligibility Guidance. Accordingly, the claim recites an abstract idea.
Dependent claims further detail the obtained data in either a mathematical relationships way, mathematical formulas or equation way, and mathematical calculation way, and further detail the observation and the evaluation. Each of the limitations in these dependent claims describe processes that, under their broadest reasonable interpretation, contain mathematical concepts directed to performing the abstract idea identified in the independent claims.
As explained in the October 2019 Update to the 2019 PEG, when determining whether a claim recites a mathematical concept (i.e., mathematical relationships, mathematical formulas or equations, and mathematical calculations), consideration must be given as to whether a claim recites a mathematical concept or merely includes limitations that are based on or involve a mathematical concept.
In claims, the limitations describe performing various types of mathematical calculations/relations as ways for implementing the identified mental process in claims.
If a claim limitation, under its broadest reasonable interpretation, describes the performance of mathematical calculations (even if a formula is not recited in the claim), then it is “Mathematical Concepts” to implement a “Mental Process” grouping of abstract ideas. See the 2019 Revised Patent Subject Matter Eligibility Guidance. Accordingly, claims each recite an abstract idea.
Step 2A – Prong 2: Is the Judicial Exception Integrated into a Practical Application?
Independent Claims recite limitations of collecting current execution information associated with a source system at a point in time, analyzing this data to determine if an exploit has been detected, and once it is detected modifying the backup workflow
The independent claims indicate the System comprising, processor, and memory. There is no indication that the combination of elements in the claim solves any particular technological problem other than merely taking advantage of the inherent advantages of using existing computer technology in its ordinary, off-the-shelf capacity to apply the identified judicial exceptions. Simply implementing the abstract idea(s) on a generic computer component such as processor is not a practical application of the abstract idea(s). The processor and the memory cited in the claim is described at a high level of generality such that it represents no more than mere instructions to apply the judicial exception on a computer (see MPEP 2106.05(f)). This limitation can also be viewed as nothing more than an attempt to generally link the judicial exception to the technological environment of a computer (see MPEP 2106.05(h)).
The independent claims as mentioned above obtain data, subject the obtained data to calculation, and then make an evaluation based on the calculation.
These limitations describe insignificant extra-solution activity pertaining to mere data gathering, processing of calculation by submitting the results of the calculation and making an identified observation, and generically applying an evaluation based on the math, without providing any details regarding a specific problem being solved. As such, these limitations do not integrate the abstract idea(s) into a practical application.
The dependent claims recite different mathematical relations and equation concepts, that can be performed by a human and are therefore directed to the identified judicial exception.
There is no indication that the combination of elements as claimed solves a technological problem other than merely taking advantage of the inherent advantages of using mathematical relation/equation/calculation in its ordinary capacity to apply the identified judicial exception. Simply implementing the abstract idea(s) on a generic computer component is not a practical application of the abstract idea(s).
The dependent claims further detail the math as applied to the obtained data. These claims contain no additional elements which would integrate the abstract idea(s) into a practical application.
Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the identified abstract idea(s).
Step 2B: Do the Claims Provide an Inventive Concept?
When evaluating whether the claims provide an inventive concept, the presence of any additional elements in the claims need to be considered to determine whether they add “significantly more” than the judicial exception.
as detailed in the analysis for Step 2A-Prong 2, independent claims contain additional elements which require evaluation as to whether they provide an inventive concept to the identified abstract idea. The elements recited in the claim describe a generic computer processor and/or computer component at a high level and do not represent “significantly more” than the judicial exception.
The limitations describe an insignificant extra-solution activity and are written at a high level in a generic manner without providing any details regarding a specific problem being solved or specific remedial actions being taken. Therefore, these limitations recite no additional elements that would amount to significantly more than the abstract ideas defined in the claim.
The dependent claims have no indication that the combination of elements solves a technological problem other than merely taking advantage of the inherent advantages of using existing mathematical concepts/ calculation/ relation in its ordinary, off-the-shelf capacity to apply the identified judicial exception. Simply implementing the abstract idea(s) on a generic computer component, or utilizing math to apply the identified judicial exception, does not describe an inventive concept.
Conclusion
In light of the above, the limitations in claims recite and are directed to abstract ideas and recite no additional elements that would amount to significantly more than the identified abstract idea(s). Claims 1-20 are therefore not patent eligible.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure See PTO 892.
Contact
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMINE RIAD whose telephone number is (571)272-8185.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bonzo Bryce can be reached 571-272-3655. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.R./
/Amine Riad/
Primary Examiner
