Ex Parte Antani et al

Patent Trial and Appeal Board

Sep 28, 2016

12605136 (P.T.A.B. Sep. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/605,136 10/23/2009
46320 7590 09/30/2016
CRGOLAW
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, FL 33434
FIRST NAMED INVENTOR
Snehal S. Antani
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
RSW920080377US1 (490) 1026
EXAMINER
WOO, ANDREW M
ART UNIT PAPER NUMBER
2441
NOTIFICATION DATE DELIVERY MODE
09/30/2016 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):
docketing@crgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte SNEHAL S. ANTANI, ERIKJ. BURCKART,
and ROHIT D. KELAPURE
Appeal2015-004968
Application 12/605, 136
Technology Center 2400
Before MAHSHID D. SAADAT, LINZY T. McCARTNEY, and
SCOTT E. BAIN, Administrative Patent Judges.
BAIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-12, which constitute all claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify International Business Machines Corporation as the
real party in interest. App. Br. 2.
Appeal2015-004968
Application 12/605, 136
STATEMENT OF THE CASE
The claimed invention relates to computer network architecture, and
specifically, to enforcement of service level agreements (SLAs) in a
distributed caching infrastructure. Spec. i-f 1. Claims 1, 5, and 9 are
independent. Claim 1 is illustrative of the invention and reads as follows:
1. A method of enforcing performance goals in an n-Tier
distribution caching infrastructure, the method comprising:
establishing a communicative connection to a plurality of
cache servers arranged in respective tier nodes in an n-Tier
cache;
collecting performance metrics for each of the cache
servers in the respective tier nodes of the n-Tier cache;
identifYing a cache server amongst the cache servers in
respective tier nodes of the n-Tier demonstrating a performance
likely to breach at least one term of a service level agreement
(SLA); and
applying a remedial measure to the identified cache server.
App. Br. 11 (emphases added).
The Examiner rejected claims 1-12 under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over de Bonet (US 2006/0253461 Al; pub. Nov. 9, 2006),
Plamondon (US 2008/0228864 Al; pub. Sep. 18, 2008), Hartsell et al. (US
2002/0049608 Al; pub. Apr. 25, 2002) ("Hartsell") and Jayaraman et al.
(US 2003/0210694; pub. Nov. 13, 2003) ("Jayaraman"). Non-Final Act. 6-
21. Appellants appeal the foregoing rejection. 2
2 The appeal is taken from the Examiner's Non-Final Action issued Nov. 20,
2013, which superseded the Final Action issued Mar. 13, 2013. In said Non-
Final Action, the Examiner also entered a rejection of claims 9-12 under
35 U.S.C. § 101, but the rejection was withdrawn in the Answer (at 4) and
thus is not before us.
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Appeal2015-004968
Application 12/605, 136
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments presented in this appeal. Arguments which Appellants could
have made but did not make in the Briefs are deemed to be waived. See
37 C.F.R. § 41.37(c)(l)(iv). On this record, we are not persuaded the
Examiner erred. We adopt as our own the findings and reasons set forth in
the rejections from which this appeal is taken and in the Examiner's Answer,
and highlight the following for emphasis.
Appellants argue all of the claims as a group, with claim 1 being
representative of the group. See 37 C.F.R. § 41.37(c)(iv). Appellants first
contend the Examiner erred in finding the prior art teaches "collecting
performance metrics for each of the cache servers," as recited in claim 1.
App. Br. 7; Reply Br. 3--4. Specifically, Appellants assert "Hartsell does not
teach the claim limitation." App. Br. 7.
The Examiner; however; finds the teaching of "collecting performance
metrics" not in Hartsell, but in Plamondon. Non-Final Act. 7; Ans. 3. We
discern no error in this finding. As the Examiner finds, Plamondon teaches a
"network optimization engine" for "detecting or determining an operational
condition, status, characteristic and/or performance of [among other
elements] the caching device ... and one or more servers." Plamondon
i-f 617 (emphasis added); Non-Final Act. 7. As the Examiner further finds,
Plamondon also teaches a cache may consist of "two, three or four or more
tiers," i.e., an n-tiered cache. Plamondon i-f 389; Non-Final Act. 7.
Appellants do not explain how these teachings in Plamondon allegedly differ
from the disputed claim limitation. Plamondon is not addressed in the
Opening Brief, and in the Reply Brief (at 4--5) Appellants simply quote the
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Appeal2015-004968
Application 12/605, 136
aforementioned passages in Plamondon and assert the teachings are
"[ n ]owhere" in them. Such argument is not persuasive of error. See In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art"). 3
Appellants also argue the prior art lacks any teaching of "identifying a
cache server ... likely to breach at least one term of a service level
agreement (SLA)," as recited in claim 1. App. Br. 9. Specifically,
Appellants again contend "Hartsell" fails to teach that limitation. Id. The
Examiner, however, finds this limitation taught in the combination of
Hartsell with Plamondon and de Bonet. Non-Final Act. 8-9. We agree with
the Examiner's finding.
As the Examiner finds, Hartsell teaches "when service levels are
approaching SLA thresholds," i.e., close to breach, resources "may be
adaptively or dynamically allocated or re-allocated according to service level
objectives." Non-Final Act. 8-9 (citing Hartsell i-f 238); see also Hartsell
i-f 92 (teaching caching algorithms). Appellants have not demonstrated the
Examiner erred in finding this passage of Hartsell, combined with the n-
tiered distributed caching infrastructure taught in the combination of de
3 To the extent Appellants intended to argue (App. Br. 9; Reply Br. 3-5) any
teaching of "collecting performance metrics" does not relate to the particular
"n-Tier distributed caching infrastructure" recited in the preamble of claim
1, Appellants have not addressed the combination of references relied upon
by the Examiner. See, e.g., In re Keller, 642 F.2d 413, 426 (CCPA 1981)
("one cannot show non-obviousness by attacking references individually
where ... the rejections are based on combinations of references.").
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Appeal2015-004968
Application 12/605, 136
Bonet and Plamondon, Non-Final Act. 6-8, teaches the disputed claim
limitation. See In re Keller, 642 F.2d at 426, supra n.3.
Any other arguments made by Appellants, see, e.g., App. Br. 9, are
not sufficiently developed to identify the alleged error by the Examiner, and
therefore we find none. See In re Lovin, 652 F.3d at 1357, supra at 4;
37 C.F.R. § 41.37(c)(l)(iv).
For the foregoing reasons, we sustain the rejection of claims 1-12
under pre-AIA 35 U.S.C. § 103(a) as unpatentable over de Bonet,
Plamondon, Hartsell, and Jayaraman.
DECISION
We affirm the Examiner's decision to reject claims 1-12.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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