Ex Parte Beard

Patent Trial and Appeal Board

Feb 26, 2016

13171857 (P.T.A.B. Feb. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/171,857 06/29/2011
46320 7590 03/01/2016
CRGOLAW
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, FL 33434
FIRST NAMED INVENTOR
Darren R. Beard
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.
GB920110017US1 (734) 6238
EXAMINER
LE, DIEU MINH T
ART UNIT PAPER NUMBER
2114
NOTIFICATION DATE DELIVERY MODE
03/01/2016 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
Ex parte DARREN R. BEARD
Appeal2014-003148
Application 13/171,857 1
Technology Center 2100
Before CARLA M. KRIVAK, KEVIN C. TROCK, and
NABEEL U. KHAN, Administrative Patent Judges.
TROCK, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
Appellant seeks review under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 5-12, which constitute all the claims pending in
this application.2 We have jurisdiction under 35 U.S.C. § 6(b). Claims 1--4
have been cancelled. 3
We AFFIRM.
1 Appellant indicates the Real Party in Interest is International Business
Machines Corporation. App. Br. 2.
2 App. Br. 16-19.
3 Final Act. 2.
Appeal2014-003148
Application 12/171,857
Invention
The claimed invention relates to trace debugging of failed transactions
in a transaction processing system. Spec. ,-r 2.
Exemplary Claim
Exemplary claim 5 is reproduced below with the disputed limitation
emphasized:
1. A transaction data processing system comprising:
a host server with memory and at least one process;
a transaction processing system executing in the memory of the host
server;
a trace generation component coupled to the transaction processing
system, the component generating a trace for a failed transaction in the
transaction processing system; and,
a transaction logging module coupled to the transaction processing
system, the module comprising program code enabled to stored entries in a
log with information pertaining to successfully completed transactions in the
transaction processing system, and to provide with the generated trace an
entry from the log with information pertaining to a previous successful
completion of the failed transaction.
App. Br. 16 (Claims Appendix).
Applied Prior Art
The Examiner relies on the following prior art in rejecting the claims:
Seidman US 2011/0098973 Al Apr. 28, 2011
2
Appeal2014-003148
Application 12/171,857
Rejections
Claims 9-12 stand rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter.
Claims 5-12 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Seidman.
ANALYSIS
We have reviewed the Examiner's rejections and the evidence of
record in light of Appellant's arguments that the Examiner has erred. We
disagree with Appellant's arguments and conclusions. We adopt as our own,
( 1) the findings and reasons set forth by the Examiner in the Office Action
from which this appeal is taken and (2) the findings and reasons set forth in
the Examiner's Answer. We concur with the conclusions reached by the
Examiner and further highlight specific findings and argument for emphasis
as follows.
The rejection of claims 9-12 under 35 U.S. C § 1 OJ
Appellant contends the Examiner erred in rejecting independent claim
9 under U.S.C. § 101 as being directed to non-statutory subject matter
because "computer readable storage medium" defines statutory subject
matter and is contrasted with "computer readable signal medium" in the
Specification. App. Br. 7-9; Reply Br. 2-3.
In support of this contention, Appellant cites prior decisions of the
Board favoring statutory subject matter where a computer readable storage
medium had been claimed and where the specification limits the scope of the
computer readable storage medium to non-transitory embodiments. App.
Br. 4--5 (citing Ex parte Dureau No. 2009-007211 (BPAI Aug. 23, 2010)
3
Appeal2014-003148
Application 12/171,857
(nonprecedential), Ex parte Hu No. 2010-000151 (BPAI Feb. 9, 2012)
(nonprecedential), Ex parte Bash No. 2009-007202 (BPAI Dec. 20, 2010)
(nonprecedential), Ex parte Raverdy No. 2010-006461 (BPAI Oct. 31, 2012)
(nonprecedential)). Appellant further asserts the Specification clearly
distinguishes between a computer readable storage medium and a computer
readable signal medium as it states "a computer readable storage medium
may be any tangible medium ... [a] computer readable signal medium may
be any computer readable medium that is not a computer readable storage
medium." App. Br. 9; Reply Br. 2 (emphasis omitted).
The Examiner, however, finds the storage medium and the signal
medium are not "successfully defined as being mutually exclusive." Ans. 9.
The Examiner argues that the portion of the Specification describing the
examples of the computer readable storage medium is "unclear, open-ended"
due to the use of the phrase "but not limited to." Ans. 9 (emphases omitted).
The Examiner further finds that the last sentence of paragraph 23 of the
Specification "blurs the lines between the two types of media that the
applicant is attempting to independently distinguish." Ans. 10.
We agree with the Examiner. It is not correct that "computer readable
storage medium" necessarily defines statutory subject matter. We have held,
rather, that "those of ordinary skill in the art would understand the claim
term 'machine-readable storage medium' ... [to] include signals per se." Ex
parte Mewherter, 107 USPQ2d 1857, 1862 (PTAB 2013) (precedential).
Although Appellant argues the "specification clearly supports the distinction
between a computer readable storage medium and a computer readable
signal medium" (App. Br. 8), we do not find the Specification sufficiently
defines "computer readable storage medium" to exclude all transitory
4
Appeal2014-003148
Application 12/171,857
signals. First, the Specification describes computer readable storage
medium as including "electronic, magnetic, optical, electromagnetic,
infrared, or semiconductor system, apparatus, or device, or any suitable
combination of the foregoing," (Spec. i-f 22), which does not exclude
transitory signals. Second, as the Examiner points out, the Specification
repeatedly uses language indicating that computer readable storage medium
should not be limited to the examples provided in the Specification. Ans. 9;
see also Spec. i-f 22 ("A computer readable storage medium may be, for
example, but not limited to ... More specific examples (a non-exhaustive
list) of the computer readable storage medium would include ... "(emphasis
added)). Further it is not enough for the Specification to describe the
medium as simply being "tangible" (Spec. i-f 22) to exclude transitory forms
of transmission. See In re Nuijten, 500 F.3d 1346, 1353 (Fed. Cir. 2007).
Regarding Ex parte Dureau, Ex parte Hu, Ex parte Bash and Ex parte
Raverdy, we note that these decisions have not been designated as
precedential, and therefore are not binding upon this panel.
Accordingly, we sustain the Examiner's rejection of claims 9-12
under 35 U.S.C. § 101.
The rejection of claims 5 -12 under 35 U.S. C § 102(b)
Appellant contends the Examiner erred in rejecting independent
claims 5 and 9 under U.S.C. § 102(b) as being anticipated by Seidman
because Seidman fails to disclose the "provision with the generated trace of
a failed transaction an entry from the log with information pertaining to a
previous successful completion of the failed transaction." App. Br. 11.
Appellant argues "Seidman also does not teach that the prior value of the
5
Appeal2014-003148
Application 12/171,857
metric should be included in the trace generated for a failed transaction."
App. Br. 14 (emphasis omitted). Appellant also argues
[i]n review of paragraphs [0063] and [0064] it will be
plain that while baseline metrics are used to detect
anomalies during application performance monitoring,
the baseline metrics are not metrics that are both (1)
derived from a previous successful completion of the
failed transaction and (2) provided with the generated
trace for the failed transaction. However, claim 5
expressly requires both conditions.
Reply Br. 6.
The Examiner, however, finds
[b ]y utilizing the baseline metrics, Seidman successfully
assessed and traced the past performance data or
previous data to compare it to selected next metric in
determining or detecting failure transaction ....
One of the step (575) titled "comparing
transactional performance data to baseline metric" does
specifically teach the Applicant's argument. This is
because Seidman used the additional metrics to
compare to the baseline (i.e., previous metric) to detect
any errors or failed transaction. Therefore, this is
clearly shown that Seidman's system identifies
anomalies in transactions, or components of transaction
based on a comparison of actual performance data with
the automatically determined baseline for a
corresponding metric teaching is corresponding to
Applicant's invention, more specifically to Applicant's
"providing with the generated trace an entry from the
log with information pertaining to a previous successful
completion of the failed transaction" argument.
Ans. 11, 12 (citing Seidman, Figure 9; i-fi-163, 64).
We agree with the Examiner that Seidman's disclosure of reporting
anomalous transactions by comparing actual performance data associated
6
Appeal2014-003148
Application 12/171,857
with a metric to a baseline generated from past performance data associated
with the metric reads on the disputed claim language of independent claims
5 and 9. Ans. 11-12.
Appellant's argument that Seidman's "prior value of the metric should
be ... included in the trace generated for a failed transaction" is
unpersuasive. App. Br. 14 (emphasis omitted, italics added). The claim
simply requires ''providing with the generated trace an entry from the
log ... " and does not require including the entry from the log in the
generated trace. (Emphasis added.) It also does not specify when or to
whom the data is provided. Therefore, Seidman' s reporting of an anomalous
transaction by comparing actual performance data to a baseline generated
from past performance data reads on the disputed limitation because both the
anomalous transaction and the baseline data are generated and provided by
the system. Seidman, i-fi-13---6.
Appellant's argument that Seidman's baseline must be "derived from
a previous successful completion of the failed transaction" to read on the
disputed limitation is also unpersuasive for a similar reason. Reply Br. 6
(emphasis added). The claim does not require information be "derived from
a previous successful completion of the failed transaction" as asserted by
Appellant but merely recites that information "[pertains] to a previous
successful completion of the failed transaction." App. Br. 16. Seidman's
baseline generated from historical performance data reads on the
"information pertaining to previous successful completion of the failed
transaction" because 1) the baseline, generated from historical performance
data, defines a threshold or a range that is representative of normal or non-
anomalous performance (i.e., "previous successful") (see Seidman, i-fi-163, 68
7
Appeal2014-003148
Application 12/171,857
(emphasis added) "baseline metrics such as response times, error counts
and/or CPU loads, and associated deviation ranges can be automatically
generated .... In some cases, a deviation range is not needed, e.g., when
the baseline metric is a do not exceed level ... response times, error counts
or CPU loads which exceed a baseline value may be considered to be
anomalous ... standard deviations can be used to establish comparison
intervals for determining whether performance data is outside one or more
normal ranges") and 2) the detected anomaly and the baseline are both
directed to a particular metric correlated with the same transaction (i.e., "of
the failed transaction") (see Seidman, i-f 63 (emphasis added) "metrics can be
correlated with transactions ... baseline metrics and deviations ranges can
be established for an entire transaction ... as well as for portions of a
transaction).
Accordingly, we are not persuaded by Appellant's arguments that the
Examiner erred in finding Seidman discloses "providing with the generated
trace an entry from the log with information pertaining to a previous
successful completion of the failed transaction," as recited in independent
claims 5 and 9. Therefore, we sustain the Examiner's rejection of claims 5
and 9 under 35 U.S.C. § 102(b).
Appellant has not presented separate substantive arguments with
respect to claims 6-8 and 10-12. Therefore, we sustain the Examiner's
rejections of these claims. See 37 C.F.R. § 41.37(c)(l)(iv) (2012).
8
Appeal2014-003148
Application 12/171,857
DECISION
We affirm the Examiner's rejection of claims 5-12.
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 )(iv).
AFFIRMED
9