Ex Parte Barsness et alDownload PDFPatent Trial and Appeal BoardJun 19, 201311316285 (P.T.A.B. Jun. 19, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ERIC LAWRENCE BARSNESS, JOHN MATTHEW SANTOSUOSSO, and JOHN JOSEPH STECHER ____________________ Appeal 2010-011009 Application 11/316,285 Technology Center 2400 ____________________ Before MAHSHID D. SAADAT, DEBRA K. STEPHENS, and MIRIAM L. QUINN, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-011009 Application 11/316,285 2 Appellants appeal under 35 U.S.C. § 134(a) (2002) from a final rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Introduction According to Appellants, the invention relates to a method, computer program product and an apparatus for characterizing Hyper-Text Transfer Protocol (HTTP) session workload in a web server in which multiple HTTP sessions are processed in a first computer system and session-persistent state data for HTTP sessions is maintained in the first computer system (Abstract). STATEMENT OF THE CASE Exemplary Claims Claims 1 and 10 are exemplary claims and are reproduced below with the disputed limitations emphasized (some paragraphing added): 1. A method for characterizing HTTP session workload in a webserver, comprising the computer-executed steps of: processing a plurality of HTTP sessions in a first computer system, maintaining session-persistent state data in said first computer system for said plurality of HTTP sessions; transmitting redundant session-persistent state data from said first computer system to a second computer system; storing said redundant session-persistent state data in said second computer system, said second computer system Appeal 2010-011009 Application 11/316,285 3 supporting recovery of session state of said plurality of HTTP sessions using said redundant session-persistent state data stored in said second computer system; and characterizing said HTTP session workload using said redundant session-persistent state data stored in said second computer system. 10. A computer program product for characterizing HTTP session workload of a web server, comprising: a plurality of computer-executable instructions tangibly recorded on computer- readable media, wherein said instructions, when executed by at least one computer system, cause the at least one computer system to perform the steps of: accessing redundant session-persistent state data stored in a first computer system, said redundant session-persistent data being received in said first computer system from a second computer system, said redundant session-persistent state data representing session-persistent state maintained by said second computer system for processing a plurality of HTTP sessions by said second computer system, said redundant session- persistent sate data being stored in said first computer system in a manner supporting recovery of session state of said plurality of HTTP sessions using said redundant session- persistent state data; and characterizing said HTTP session workload using said redundant session-persistent state data accessed by said accessing step. References Lin US 2002/0073211 A1 Jun. 13, 2002 Appeal 2010-011009 Application 11/316,285 4 Fraenkel US 2002/0198985 A1 Dec. 26, 2002 Rejections (1) Claims 10-15 stand rejected under 35 U.S.C. § 101 as directed to non-statutory subject matter. (2) Claims 1-3, 7-12, and 16-20 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Lin. (3) Claims 4-6 and 13-15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Lin and Fraenkel. (4) Claims 6 and 15 stand rejected under 35 U.S.C. § 112, second paragraph, as indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention and under 35 U.S.C. § 112, second paragraph, as being incomplete for omitting essential elements, such omission amounting to a gap between the elements. We have only considered those arguments Appellants actually raised in the Brief. Arguments Appellants could have made but chose not to make in the Brief have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii)(2011). ISSUE 1 35 U.S.C. § 101 Rejection of Claims 10-15 Appellants argue claim 10 recites “tangibly recorded on computer- readable media” thus restricting embodiments in which the media and the information recorded on it have some physical form (App. Br. 17 (emphasis in the original)). Appellants assert the Examiner erred in interpreting the Appeal 2010-011009 Application 11/316,285 5 Specification such that the invention encompasses transmission signals since the Specification does not state the invention encompasses energy such as transmission signals flowing in such networks (App. Br. 17 and 18 (quoting p. 35, l. 15 – p. 36, l. 5)). Appellants argue the Specification implies signal- bearing media is something other than “transmission network” (id.). Appellants then note all of the examples of “signal-bearing media” disclosed in the Specification are physical devices which tangibly store data (id.). Issue 1: Has the Examiner erred in concluding claims 10-15 recite non-statutory subject matter? ANALYSIS Appellants’ Specification states the present invention is capable of being distributed as a program product in a variety of forms (pg. 35, ll. 23- 24). The Specification provides examples of the signal-bearing media used to carry out distribution, which include, but are not limited to, various forms of media, such as DVDs and CDROMs, “regardless of whether data is exchanged from one form of signal-bearing media to another over a transmission network, including a wireless network” (p. 35, l. 25 – p. 36, l. 5)). Appellants have not explicitly defined “computer-readable media” in the Specification; however, taking a broad, but reasonable interpretation of “tangibly recorded on a computer-readable media” in light of the Specification, we determine Appellants’ recited invention is directed toward subject matter which includes non-statutory, transitory embodiments. Indeed, we find the Specification states the invention is capable of being distributed in the form of a wireless signal when exchanged from one signal- Appeal 2010-011009 Application 11/316,285 6 bearing medium to another (Spec., p. 36). This falls within a propagating electromagnetic signal per se and thus, is not directed to one of the statutory categories (MPEP § 2106 I.). A claim that covers both statutory and non- statutory embodiments (under the broadest reasonable interpretation of the claim when read in light of the specification and in view of one skilled in the art) embraces subject matter that is not eligible for patent protection and therefore is directed to non-statutory subject matter (id.). Accordingly, we conclude the inventions as recited in claims 10-15 are directed to non-statutory subject matter under 35 U.S.C. § 101. ISSUE 2 35 U.S.C. § 102(b) Rejection of Claims 1-3, 7-12 and 16-20 Appellants argue Lin does not disclose “characterizing said HTTP session workload using said redundant session -persistent state data stored in the backup computer” (App. Br. 9-10). Specifically, although Appellants acknowledge Lin’s system collects session-persistent state data in the “state server,” Appellants argue the data is used only for maintaining session redundancy, and, according to Appellants, this data is not used to characterize HTTP session workload (App. Br. 10). Appeal 2010-011009 Application 11/316,285 7 Appellants contend the portion of Lin relied upon by the Examiner does not state the session information in the state server is used for “characterizing said HTTP session workload,” as recited in claim 1 (App. Br. 11 (citing Lin, ¶ [0028])). Instead, according to Appellants, the cited portion of Lin describes the session information is a “log of activity,” but does not describe the use of the data in the state server except that it is used for restoring session state if a webserver becomes inoperative (App. Br. 11- 12). According to Appellants, the Examiner appears to interpret Lin such that the sole act of storing redundant data amounts to “characterizing said HTTP session workload” (App. Br. 12). Appellants argue merely storing the raw data does not amount to doing anything with it, other than storing it (App. Br. 13). Appellants assert Lin does not disclose extracting any of the useful information as disclosed in their Specification from the raw data (id.). 1 Issue 2: Has the Examiner erred in finding Lin discloses “characterizing said HTTP session workload using said redundant session- persistent state data stored in said second computer system,” as recited in claim 1? 1 Appellants argue claims 1-3, 7-12, and 16-20 are not obvious under 35 U.S.C. § 103(a) as being unpatentable over Lin (App. Br. 5 and 14-15). The Examiner has not rejected these claims on this basis and therefore, we do not consider Appellants’ arguments directed to this ground of rejection. Appeal 2010-011009 Application 11/316,285 8 ANALYSIS The Examiner interprets “characterizing” as describing “the qualities or peculiarities of” (Ans. 10 (citing Webster)). We do not find error in this broad, but reasonable interpretation taken in light of the Specification. The Examiner finds Lin discloses storing specific information of a session, such as time duration, describing the details of the session, and thus, Lin discloses characterizing the HTTP session workload (id. (citing Lin, ¶ [0028])). We agree with the Examiner’s findings. Specifically, the Examiner finds, and Appellants admit, that Lin discloses use of data in the state server for recovery of failed sessions (Ans. 11 (citing App. Br. 11 and Lin, ¶ [0035])). Thus, we find the session restoration in Lin’s session requires information recorded for possible use in recovery (¶ [0035]). Further, we find Lin discloses different combinations and permutations of log information as relevant to the application of the configuration (¶ [0028]). We find Lin’s disclosure of characterizing is consistent with the “characterizing” disclosed in Appellants’ Specification which describes the data used (App. Br. 13 (citing Spec, p. 32, l. 5 – p. 34, l. 9; see also App. Br. 2)). We agree with the Examiner that Lin does not solely store all data of the session, but instead, stores data (Ans. 11). Lin discloses session information sent to a state server to retain records of session activities (¶ [0028]). This information in Lin is recorded for possible use in session recovery (¶ [0035]; see also ¶ [0029]). We further agree with the Examiner that Lin’s retrieving data to facilitate recovery and configure itself according Appeal 2010-011009 Application 11/316,285 9 to the former session is a separate, additional step to the initial storing (Ans. 11). Indeed, this extraction is characterizing the session workload. Therefore, we find the Examiner has shown Lin discloses “characterizing said HTTP session workload using said redundant session- persistent state data stored in said second computer system,” as recited in claim 1. Appellants did not separately argue claims 2, 3, 7-12, and 16-20 and therefore, they fall with claim 1. Accordingly, the Examiner did not err in rejecting claims 1-3, 7-12, and 16-20 under 35 U.S.C. § 102(b) for anticipation by Lin. 35 U.S.C. § 103(a) Rejection of Claims 4-6 and 13-15 Appellants do not separately argue the patentability of dependent claims 4-6 and 13-15 and rely on the same arguments raised for their base claims (App. Br. 16). For the reasons set forth above, we are not persuaded the Examiner erred in rejecting these claims. Therefore, we sustain the rejection of claims 4-6 and 13-15 under 35 U.S.C. § 103(a) as being unpatentable over Lin and Fraenkel. ISSUE 3 35 U.S.C. § 112, second paragraph, Rejection of Claims 6 and 15 Appellants argue the parameters recited in claims 6 and 15 are related to the session workload (App. Br. 19-20). According to Appellants, the Specification describes specific parameters, which can be extracted from the redundant session data in the second (backup) computer, and describes the significance of these parameters (App. Br. 20). Appeal 2010-011009 Application 11/316,285 10 Appellants further argue that data in the redundant database is used to draw inferences about the HTTP session workload,and that the redundant data can be used as an approximate, indirect measure of HTTP session workload (App. Br. 19). Thus, Appellants contend, the redundant data falls within the scope of “characterizing the HTTP session workload,” recited in claim 1 (App. Br. 19-20). Issue 3: Has the Examiner erred in determining the recitation of the characterization parameters as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention and as being incomplete for omitting essential elements, i.e., a lack of functional descriptions of how the parameters are related or used to generate the characterization parameter? ANALYSIS In response, the Examiner finds the specific characterization parameters recited in claims 6 and 15 are not inherently related to the characterization of a HTTP session workload, but are directed to the performance and to the characteristics of the database itself (Ans. 14). Additionally, the Examiner points out the parameters are too general in nature and could apply to the characterization of any type of data (id. at 14- 15). The Examiner then asserts “there must be language in the claims that functionally relate the parameters to how they are used to characterize HTTP sessions” (Ans. 15). Although we agree with the Examiner that the claim term could broadly be interpreted as relating to any type of data, Appellants nonetheless Appeal 2010-011009 Application 11/316,285 11 persuade us the Specification provides the significance of the parameters with respect to the session workload (App. Br. 20 (citing p. 32, l. 5 – p. 34, l. 11)). As such, although we agree with the Examiner that the parameters as recited in the claim are general in nature and could apply to the characterization of any type of data, we find characterizing the data may be interpreted as describing “the qualities or peculiarities of,” as set forth above in Issue 2. We further find characterizing the session workload would be derived using the redundant session-persistent state data. Since the term “using” comprises using data from the structured database, characterizing the session workload would use data from the structured database – which is not entirely data of the HTTP sessions (see claim 2 from which claim 6 depends). Thus, although the recited parameters are not related to the session workload, we find the parameters define additional data based on information in the structured database that could have been input into the structured database by, for example, a user. Therefore, claims 6 and 15 are not indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention and are incomplete for omitting essential elements, such omission amounting to a gap between the elements. Accordingly, we do not sustain the Examiner’s rejection of claims 6 and 15 under 35 U.S.C. § 112, second paragraph. DECISION The Examiner’s rejection of claims 10-15 under 35 U.S.C. § 101 as directed to non-statutory subject matter is affirmed. Appeal 2010-011009 Application 11/316,285 12 The Examiner’s rejection of claims 1-3, 7-12 and 16-20 under 35 U.S.C. § 102(b) as being anticipated by Lin is affirmed. The Examiner’s rejection of claims 4-6 and 13-15 under 35 U.S.C. § 103(a) as being unpatentable over Lin and Fraenkel is affirmed. The Examiner’s rejection of claims 6 and 15 under 35 U.S.C. § 112, second paragraph, as indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention is reversed. The Examiner’s rejection of claims 6 and 15 under 35 U.S.C. § 112, second paragraph, as being incomplete for omitting essential elements is reversed. AFFIRMED msc Copy with citationCopy as parenthetical citation