Ex Parte Arndt et al

Patent Trial and Appeal Board

Jan 8, 2018

13026351 (P.T.A.B. Jan. 8, 2018)

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.
13/026,351 02/14/2011 KARLA K. ARNDT ROC920100292US1 4721
46797 7590 01/10/2018
Patterson Rr SheriHan T T P
EXAMINER
24 Greenway Plaza, Suite 1600
Houston, TX 77046
ZHANG, HAIDONG
ART UNIT PAPER NUMBER
2858
NOTIFICATION DATE DELIVERY MODE
01/10/2018 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):
Pair_eOfficeAction@pattersonsheridan.com
IBM@PATTERSONSHERIDAN.COM
rociplaw@us.ibm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KARLA K. ARNDT, JAMES M. CAFFREY,
KEYUR PATEL and ASPEN L. PAYTON
Appeal 2017-007142
Application 13/026,351
Technology Center 2800
Before TERRY J. OWENS, BEVERLY A. FRANKLIN, and
MICHAEL G. McMANUS, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’
rejection of claims 8-21. We have jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellants claim a system and computer-readable storage
medium for monitoring a performance metric. Claim 8 is illustrative:
8. A non-transitory computer-readable storage medium
storing an application, which, when executed on a
processor, performs an operation for monitoring a
performance metric, the operation comprising:
determining a value of a performance metric for a
current sampling period;
Appeal 2017-007142
Application 13/026,351
upon determining the value of the performance metric
determined for the current sampling period passes a first
threshold derived from a first model of expected behavior
of the performance metric, evaluating the value of the
performance metric determined for the current sampling
period according to a second model of expected behavior
of the performance metric; and
upon determining the value of the performance metric
determined for the current sampling period passes a
threshold derived from the second model, generating an alert
message.
Kolsrud
McGee
Breitgand
Cohen
The References
US 3,795,008
US 2003/0079160 A1
US 2006/0293777 A1
US 2007/0083513 A1
Feb. 26, 1974
Apr. 24, 2003
Dec. 28, 2006
Apr. 12, 2007
The Rejections
The claims stand rejected as follows: claims 8-14 provisionally on the
ground of nonstatutory obviousness-type double patenting over claims 1-7
of copending Application No. 13/686,389, claims 15-21 provisionally on the
ground of nonstatutory obviousness-type double patenting over claims 1-7
of copending Application No. 13/686,389 in view of Breitgand, claims 8
and 15 under 35 U.S.C. § 103 over Breitgand in view of McGee, claims 8-
10, 12-15, 17 and 19-21 under 35 U.S.C. § 103 over Breitgand in view of
Cohen, and claims 11 and 18 under 35 U.S.C. § 103 over Breitgand in view
of Cohen and Kolsmd.
OPINION
We affirm the provisional obviousness-type double patenting
rejections, reverse the rejections under 35 U.S.C. § 103, and under
37 C.F.R. § 41.50(b) enter a new ground of rejection.
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Application 13/026,351
Provisional obviousness-type double patenting rejections
The Appellants do not challenge the provisional obviousness-type
double patenting rejections (Br. 7). We therefore summarily affirm those
rejections.
Rejection over Breitgand in view of McGee
Breitgand discloses “methods and systems for automated and adaptive
setting of system component performance thresholds” 2). In one
embodiment Breitgand obtains a best-fit quadratic polynomial curve (98) for
application metric versus component performance metric data (94), selects a
subset of the data whose component performance metric values fall within a
filtering interval (d), and calculates an updated service level objective (SLO)
threshold value (a horizontal line (96) above which application metric values
correspond to an SLO violation and below which application metric values
correspond to normal system behavior) (]fl| 50, 110, 111; Fig. 7). In an
alternative threshold-setting method Breitgand constructs an application
metric (p) versus component performance metric (p) plot having a horizontal
SLO application metric threshold and a vertical component performance
metric threshold (y) such that the plot is divided into four quadrants, where
values in the lower left quadrant (104) satisfy both thresholds (i.e., are true
negative events), values in the upper right quadrant (106) violate both
thresholds (i.e., are true positive events), and values in the other quadrants
satisfy one threshold but violate the other threshold (i.e., are false positive or
false negative events) (^ 112; Fig. 8). A threshold management “unit
searches for the location of line 102 that maximizes the number of data
points in quadrants 104 and 106, and minimizes the number of data points in
the remaining quadrants” (^ 113).
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Application 13/026,351
McGee determines whether metric sample subgroup data fits a normal
distribution or is normalizable, and if not, calculates upper and lower
threshold limits for the mean based on the quantile function of the subgroup
means, augmented with a linear regression-based estimate of the rate of
change of the metric (]fl| 102, 111, 181,211; Fig. 7). “The mean and
standard deviation are compared to the upper and lower limits for the mean
and standard deviation for each subgroup. If the mean or standard deviation
of any of the subgroups falls outside the limits, notification of a threshold
violation is sent to alarm manager 206” 225; Fig. 12).
The Examiner concludes, in reliance upon McGee’s paragraph 55,
that McGee would have suggested modifying Breitgand’s threshold
management unit such that it meets the requirement in the Appellants’
claims 8 and 15 of “upon determining the value of the performance metric
determined for the current sampling period passes a first threshold derived
from a first model of expected behavior of the performance metric,
evaluating the value of performance metric determined for the current
sampling period according to a second model of expected behavior of the
performance metric; and upon determining the value of the performance
metric determined for the current sampling period passes a threshold derived
from the second model, generating an alert message” (Final Act. 11-12).
McGee’s paragraph 55 is as follows:
Dynamic threshold testing component 114 detects when
individual metrics are in abnormal condition, producing
threshold alarm events. It uses both fixed, user-established
thresholds and thresholds derived from a statistical analysis of
the metric itself. Dynamic threshold testing component 114
includes a fixed threshold check module, a dynamic threshold
check module, and a dynamic threshold computation module,
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Application 13/026,351
as will be discussed in detail below in the section entitled
“Adaptive Threshold Determination.”
The Examiner does not explain, and it is not apparent, how that disclosure
would have suggested, to one of ordinary skill in the art, modifying
Breitgand as proposed by the Examiner.
The Examiner finds that McGee’s abstract, paragraph 230 and
figures 7 and 13 disclose the above-stated requirements of the Appellants’
claims 8 and 15 (Ans. 6-9).
The Examiner sets forth McGee’s paragraph 230’s disclosure, part of
McGee’s figure 7, and an annotated version of McGee’s figure 13, but does
not establish that those portions of McGee disclose the above-stated
requirements of the Appellants’ claims 8 and 15.
The Examiner finds that Breitgand’s figure 7’s filtering interval (100)
corresponds to Breitgand’s figure 8’s component threshold (y) (Ans. 4-6).
Breitgand’s component performance metric filtering interval (100)
and component performance metric threshold (y) differ and have different
functions in different embodiments. In one embodiment the filtering
interval (100) defines a range of component performance metric data used in
a quadratic polynomial fit to determine an updated SLO threshold (]fl| 110,
111; Fig. 7), whereas in an alternative method the SLO threshold and
component performance metric threshold (y) divide application
metric/component performance metric data into quadrants for determining
the component performance metric threshold (y) that maximizes the number
of data points in true negative event and true positive event quadrants
flfll 112, 113; Fig. 8). Moreover, the Examiner does not explain how those
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Application 13/026,351
figures would have led one of ordinary skill in the art to the Appellants’
claimed invention.
Rejections over Breitgand in view of Cohen and
over Breitgand in view of Cohen and Kolsrud
We need address only the independent claims (8 and 15).1
Cohen uses a recurrent problem determination module (132) to
identify recurrent signature cluster problems indicated by performance
thresholds, such as SLO thresholds, being exceeded 15, 50, 65, 66;
Fig. 2).2
The Examiner finds that Breitgand’s figure 8’s lower left
quadrant 104’s data points (which are within both the SLO and y thresholds
and indicate true negative events) and upper right quadrant 106’s data points
(which are outside both the SLO and y thresholds and indicate true positive
events) are past both thresholds (below the SLO threshold and to the left of
the y threshold or above the SLO threshold and to the right of the
y threshold) and that one of ordinary skill in the art, upon determining that
the value of a performance metric for the current sampling period passes a
first threshold derived from a first model of expected behavior of the
performance metric, would have evaluated the value of the performance
metric according to a second model of expected behavior of the performance
1 The Examiner does not rely upon Kolsrud for any disclosure that remedies
the deficiency in the references applied to the independent claims as to the
limitations in those claims (Final Act. 19).
2 A signature is a representation of a state of a computer resource and is
identified when the computer resource is having a problem (]f 14). “[T]he
database of signatures is clustered to find clusters of signatures that
characterize different performance problems and normal operation regimes”
(1 18).
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Application 13/026,351
metric to ensure that true positive, true negative, false positive and false
negative events are properly identified without logic errors (Final Act. 15-
17; Ans. 9-15).
The Examiner does not explain, and it is not apparent, how
Breitgand’s figure 8 would have led one of ordinary skill in the art to
evaluate a performance metric using first and second models as proposed by
the Examiner.
Thus, the Examiner has not set forth a factual basis which is sufficient
to support a conclusion of obviousness of the Appellants’ claimed invention.
See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“A rejection based on
section 103 clearly must rest on a factual basis, and these facts must be
interpreted without hindsight reconstruction of the invention from the prior
art”). Accordingly, we reverse the rejections under 35 U.S.C. § 103.
New ground of rejection
Under 37 C.F.R. § 41.50(b) we enter the following new ground of
rejection.
Claim 8 is rejected under 35 U.S.C. § 101 as failing to claim
patent-eligible subject matter.
The Supreme Court stated in Bilski v. Kappos, 561 U.S. 593, 601
(2010) that “[t]he Court’s precedents provide three specific exceptions to
§ 101’s broad patent-eligibility principles: ‘laws of nature, physical
phenomena, and abstract ideas.’ [Diamond v.] Chakrabarty, [447 U.S. 303,]
309, 100 S. Ct. 2204 [(1980)].” The Court further stated that limiting an
abstract idea to a particular technological environment does not make the
concept patentable. See Bilski, 561 U.S. at 610-611. Determining whether a
claimed invention is patent-eligible subject matter requires determining
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whether the claim is directed toward a patent-ineligible concept and, if so,
determining whether the claim’s elements, considered both individually and
as an ordered combination, transform the nature of the claim into a patent-
eligible application. See Alice Corp. v. CLSBankInt’l, 134 S. Ct. 2347,
2350 (2014).
The Appellants’ claim 8 is directed toward an abstract idea, i.e., upon
determining that a performance metric passes a first threshold derived from a
first model of expected performance metric behavior, determining whether
the performance metric passes a threshold derived from a second model of
expected performance metric behavior and, if so, generating an alert
message. The claim is limited to a computer-readable medium storing an
application for execution using a computer processor, but “simply
implementing a mathematical principle on a physical machine, namely a
computer, [i]s not a patentable application of that principle.” Alice, 134 S.
Ct. at 2357-58 (quoting Mayo Collaborative Services v. Prometheus Labs.,
566 U.S. 66, 84 (2012)) (citing Gottschalkv. Benson, 409 U.S. 63, 67
(1972)). Also, “insignificant post-solution activity [generating an alert
message] will not transform an unpatentable principle into a patentable
process.” Diamond v. Diehr, 450 U.S. 175, 191-92 (1981). Thus, the
claim’s elements, considered both individually and as an ordered
combination, do not transform the nature of the claim into a patent-eligible
application.
We leave it to the Examiner to address the other claims.
DECISION/ORDER
The provisional nonstatutory obviousness-type double patenting
rejections of claims 8-14 over claims 1-7 of copending Application
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Application 13/026,351
No. 13/686,389, and claims 15-21 over claims 1-7 of copending
Application No. 13/686,389 in view of Breitgand are affirmed. The
rejections under 35 U.S.C. § 103 of claims 8 and 15 over Breitgand in view
of McGee, claims 8-10, 12-15, 17 and 19-21 over Breitgand in view of
Cohen, and claims 11 and 18 over Breitgand in view of Cohen and Kolsrud
are reversed. Under 37 C.F.R. § 41.50(b) a new ground of rejection of
claim 8 has been entered.
It is ordered that the Examiner’s decision is affirmed.
In addition to affirming the examiner's rejection(s) of one or more
claims, this decision contains a new ground of rejection pursuant to 37 CFR
§ 41.50(b) which provides that "[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review."
37 CFR § 41.50(b) also provides that the appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record. . . .
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED: 37 C.F.R, § 41,501b)
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