Ex Parte Biazetti et al

Patent Trial and Appeal Board

Feb 8, 2018

12347108 (P.T.A.B. Feb. 8, 2018)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/347,108 12/31/2008 Ana C. Biazetti RSW920080235US1 (412) 1523
46320 7590
CRGO LAW
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, EL 33434
EXAMINER
KUDIRKA, JOSEPH R
ART UNIT PAPER NUMBER
2114
NOTIFICATION DATE DELIVERY MODE
02/12/2018 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):
docketing@crgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANA C. BIAZETTI, THOMAS LUMPP, and
JUERGEN SCHNEIDER
Appeal 2017-001056
Application 12/347,108
Technology Center 2100
Before JEAN R. HOMERE, JEFFREY S. SMITH, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
INTRODUCTION
Appellants1 request rehearing under 37 C.F.R. § 41.52 of our Decision
of October 2, 2017, wherein we affirmed the Examiner’s decision rejecting
claims 1—12. We have reconsidered our original Decision, in light of
Appellants’ comments in the Request, and have found no errors therein.
We, therefore, decline to change the Decision.
1 International Business Machines Corporation is identified as the real party
in interest. App. Br. 2.
Appeal 2017-001056
Application 12/347,108
DISCUSSION
Appellants contend:
[HJaving correctly determined that a class is a form of template,
the Board overlooks the more important argument emphasized
by Appellants at pages 6 through 9 of the Appeal Brief and again
at pages 3 and 4 of the Reply Brief that O’Brien merely teaches
a availability management service (AMS) that “maintains a
database that tracks system resources and dependencies and
coordinates availability ‘roles’ for assignment to different ones
of the resources”.
Req. Reh’g 4. Appellants argue O’Brien does not teach that its “maintained
database is stored as a ‘managed object class,”’ and, therefore, “it is not
possible for O’Brien to account for the claimed ‘storing the best practices
template with mapped components and dependencies as a high availability
policy for the selected application.’” Id. at 5. In sum, Appellants argue, “the
Board has not specifically addressed the argument of Appellants at pages 6
through 9 of the Appeal Brief that no storage of a template has occurred with
mapped components and dependencies as a high availability policy for a
selected application as claimed.” Id.
Appellants’ arguments do not persuade us that any argument
presented in Appellants’ Appeal Brief or Reply Brief was misapprehended
or overlooked. Appellants’ Appeal Brief quotes from and describes
teachings in O’Brien, and then states:
[I]t is difficult to see where in O’Brien, a mapping exists to
specific teachings of O’Brien to the claimed “storing the best
practices template with mapped components and dependencies
as a high availability policy for the selected application”. At
best, a mapping exists of storing a database with mapped
components and dependences as an availability policy for a
computing system.
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App. Br. 6—8. Appellants also state that ‘Ttlhe system database is hardly a
“template” with manned components and dependencies that is stored as a
high availability policy for an application.” Id. at 9. These arguments
constitute little more than a recitation of the claim language with certain
terms emphasized. Our Decision explains why the “template” aspect of the
claim is met by the Examiner’s findings as to O’Brien’s “managed object
class,” and why O’Brien’s “managed object instance” may be considered the
claimed “selected application.” Decision 3. Our Decision specifically cites
the Examiner’s explanation presented at pages 18—19 of the Answer, but the
Examiner’s findings had not changed from the Final Action. See Final Act.
3^4. The Appeal Brief lacks any further explanation of why the Examiner’s
findings as to claim limitations taught by O’Brien were alleged to be
insufficient or incorrect.
The Request for Rehearing argues that “at page 4 of the Reply Brief’
Appellants raised the same important issue argued at pages 6—9 of the
Appeal Brief, and that the Board did not consider these arguments even
though “pages 3 and 4 of the Reply Brief merely block quote the arguments
already present in the Appeal Brief at pages 6 through 9.” Req. Reh’g 5.
As noted in our Decision, new arguments were presented at page 5 of
Appellants’ Reply Brief without a showing of good cause. Decision 4.
These arguments included that O’Brien’s managed object class is not related
to best practices and that the managed object class is not stored as a high
availability policy. Id. Contrary to Appellants’ argument in the Request for
Rehearing, the arguments from the Appeal Brief quoted at pages 3^4 of the
Reply Brief were considered and addressed in our Decision, as discussed
above. In the Request for Rehearing, Appellants do not contend that the new
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Application 12/347,108
arguments presented at page 5 of the Reply Brief were presented in the
Appeal Brief. We considered these arguments to be new because, although
the claim terms at issue were recited in the skeletal argument presented in
the Appeal Brief, the emphasis on entirely different terms within these
limitations in the Reply Brief presented new issues not reasonably raised by
Appellants’ arguments in the Appeal Brief and, therefore, not addressed by
the Examiner.
Similarly, Appellants’ contention in the Request for Rehearing that
O’Brien is deficient because it does not teach that its maintained database is
stored as a managed object class is an argument that could have been
presented in the Appeal Brief, but was not. Req. Reh’g 5. We note,
however, that the Examiner does not find O’Brien’s model (stored in a
database) to be the template with parameterized entries. Ans. 19
(“Therefore, it is not the database that is the template; rather, the template
aspects that the Examiner relies upon stem from the managed object class.”).
The Examiner explains the relationship between O’Brien’s managed object
classes and the database:
Without the template aspects of the managed object classes, their
managed objects’ resource states, behaviors, and dependencies
could not be modeled in the availability manager (O’Brien: col.
14, lines 13-17 and O’Brien: col. 24, lines 28-34).
Subsequently, the managed object class templates are used
to create managed object instances, and the particular managed
object instance is therefore ‘mapped’ in a model in the
availability manager according to a hierarchy (e.g. O’Brien: Fig.
7).
Ans. 19. Thus, the objects in O’Brien’s model are formed from templates
(classes), and general attributes of the class are populated with specific
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Application 12/347,108
entries particular to that instance, which are used to provide high availability
of services related to the resources represented by those objects. See
O’Brien Abstract, col. 13,11. 7—26, col. 17,11. 23—31.
For the foregoing reasons, we decline to modify our Decision.
CONCLUSION
Based on the foregoing, we have granted Appellants’ Request for
Rehearing to the extent we have considered the arguments made in the
Request and reviewed our Decision, but we deny Appellants’ Request for
Rehearing in that we decline to make any change in the Decision.
ORDER
The Request for Rehearing is denied.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
REHEARING DENIED
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