Ex Parte Bardsley

Patent Trial and Appeal Board

May 9, 2014

11474842 (P.T.A.B. May. 9, 2014)

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.
11/474,842 06/26/2006 Jeffrey S. Bardsley I400/US 1223
52354 7590 05/09/2014
SCENERA RESEARCH, LLC
JENKINS, WILSON, TAYLOR & HUNT, P.A.
5400 Trinity Road
Suite 303
Raleigh, NC 27607
EXAMINER
VU, TUAN A
ART UNIT PAPER NUMBER
2193
MAIL DATE DELIVERY MODE
05/09/2014 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 JEFFREY S. BARDSLEY
____________

Appeal 2011-005848
Application 11/474,842
Technology Center 2100
____________

Before ROBERT E. NAPPI, BRUCE R. WINSOR, and
ROBERT J. WEINSCHENK, Administrative Patent Judges.

WEINSCHENK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-22, 25-31, and 34-38. Claims 23, 24, 32, and 33 are canceled. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

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STATEMENT OF THE CASE
Introduction
Appellant’s invention relates to obtaining and utilizing a score
indicative of an overall performance effect of a software update on a
software host (Spec. 1:9-12).
Claim 1, which is illustrative, reads as follows:
1. A method for obtaining and utilizing a score indicative of
an overall performance effect of a software update on software hosts,
the method comprising:
applying a software update to a plurality of software hosts for
updating the plurality of software hosts, each of the plurality of
software hosts comprising a hardware platform and an associated
software configuration on which the software update is applied;
monitoring, for each of the plurality of software hosts, a
plurality of different software host parameters indicative of
performance effects of the software update on each software host to
automatically obtain corresponding parameter values, wherein the
automatically obtained corresponding parameter values include at
least one hardware platform performance-related parameter;
determining, based on the parameter values, a plurality of
individual software host scores each indicative of an overall
performance effect of the software update on respective software
hosts and an aggregate score indicative of an overall performance
effect of the software update on two or more of the software hosts, the
aggregate score being associated with a diversity between the two or
more of the plurality of software hosts, the diversity being between
one of each associated hardware platform and each associated
software configuration of the two or more of the software hosts; and
performing an action based on one of the plurality of individual
software host scores and the aggregate score.
Rejections on Appeal
Claims 1-7, 9-22, 25-28, 30, 31, and 34-38 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Goldstein (U.S. 7,197,559
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B2; Mar. 27, 2007), Admitted Prior Art (hereinafter “APA”), White (U.S.
6,125,372; Sept. 26, 2000), and Soles (U.S. 6,782,421 B1; Aug. 24, 2004)
(see Ans. 4-16).
Claims 8 and 29 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Goldstein, APA, White, Soles, and Shen (U.S.
2004/0204983 A1; Oct. 14, 2004) (see Ans. 16-17).
Issue on Appeal
Did the Examiner err in finding that Goldstein, APA, White, and
Soles teach or suggest determining “an aggregate score indicative of an
overall performance effect of the software update on two or more of the
software hosts, the aggregate score being associated with a diversity between
the two or more of the plurality of software hosts, the diversity being
between one of each associated hardware platform and each associated
software configuration of the two or more of the software hosts,” as recited
in claim 1?

ANALYSIS
We review the Examiner’s rejections in light of Appellant’s
contentions that the Examiner erred. We refer herein to Appellant’s Appeal
Brief filed September 27, 2010 (“Br.”) and the Examiner’s Answer mailed
November 24, 2010 (“Ans.”).
Appellant argues that Goldstein and Soles do not teach or suggest
determining an aggregate score indicative of an overall performance effect
of the software update on two or more of the software hosts, the aggregate
score being associated with a diversity between the two or more of the
plurality of software hosts, the diversity being between one of each
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associated hardware platform and each associated software configuration of
the two or more of the software hosts (Br. 16-19). We disagree with
Appellant. As the Examiner explains (Ans. 5-7), Goldstein teaches a system
for determining a plurality of individual software host scores (see, e.g.,
Goldstein col. 44, ll. 38-43). Goldstein further teaches that the disclosed
system can be used to concurrently analyze the performance of many
different types of software hosts (Goldstein col. 37, ll. 8-16), including hosts
that are diverse with respect to hardware platforms and software
configurations (Goldstein col. 6, ll. 60-67). The Examiner also explains
(Ans. 8, 18) that Soles teaches the aggregation of individual scores relating
to the performance of a software application to obtain an overall score (see,
e.g., Soles col. 7, ll. 9-11; col. 8, ll. 52-55; col. 10, ll. 53-57). Therefore, we
agree with the Examiner that, when combined, Goldstein and Soles teach the
disputed claim limitation.
Appellant argues that Goldstein does not teach aggregating scores at
all and that Soles only teaches aggregating scores for a single application,
not multiple software hosts (Br. 18). Appellant’s argument is not persuasive
because it addresses the references individually, not the combination cited
by the Examiner. See In re Keller, 642 F.2d 413, 426 (CCPA 1981) (“[O]ne
cannot show non-obviousness by attacking references individually where, as
here, the rejections are based on combinations of references.”). As
discussed above, Goldstein teaches determining individual scores for
multiple software hosts, and Soles teaches the aggregation of individual
scores to obtain an overall score. Appellant’s argument does not address the
combined teachings of the references as they apply to the disputed claim
limitation.
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Appellant also argues that neither Goldstein nor Soles individually
teaches aggregating scores for diverse software hosts (Br. 19). This
argument also fails to persuade us of an error because it also addresses the
references individually, not the cited combination. See In re Keller, 642
F.2d at 426. As discussed above, Goldstein teaches determining individual
scores for diverse software hosts, and Soles teaches the aggregation of
individual scores to obtain an overall score. Appellant’s argument does not
address the combined teachings of the references as they apply to the
disputed claim limitation.
Appellant’s arguments regarding claim 1 are not persuasive, and,
therefore, we sustain the Examiner’s rejection of claim 1. With respect to
claims 8 and 29, Appellant argues that the additional reference cited by the
Examiner for those claims does not compensate for the alleged deficiencies
that Appellant identified with respect to claim 1 (Br. 20). Because
Appellant’s arguments regarding claim 1 are not persuasive, Appellant’s
arguments regarding claims 8 and 29 are also not persuasive. With respect
to the remaining claims, Appellant presents no separate arguments and
argues their patentability based on the same reasons stated for claim 1 (Br.
20). Therefore, we sustain the Examiner’s rejections of claims 2-7, 9-22,
25-28, 30, 31, and 34-38.

DECISION
The decision of the Examiner rejecting claims 1-22, 25-31, and 34-38
is affirmed.

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2011).

AFFIRMED

kis