Ex Parte Boland

Board of Patent Appeals and Interferences

Dec 20, 2004

09086627 (B.P.A.I. Dec. 20, 2004)

1
The opinion in support of the decision being entered
today was not written for publication and is
not binding precedent of the Board
Paper No. 33
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex parte VERNON K. BOLAND
______________
Appeal No. 2004-2175
Application 09/086,627
_______________
ON BRIEF
_______________
Before THOMAS, BARRETT, and BARRY, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.

DECISION ON APPEAL
Appellant has appealed to the Board from the examiner's
final rejection of claims 1-5, 7 and 9-16, appellant having
canceled claims 6 and 8.
Representative claim 1 is reproduced below:
1. A method of allocating network resources on a computer
network, comprising:
monitoring at least two nodes on the computer network among
at least a first process and a second process for allocation of
computer resources on each of the at least two nodes;
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Application 09/086,627
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assigning a priority to each of the at least two processes,
the second process being assigned a lower priority than the first
process;
for the first process running on at least one of the two
nodes, setting a minimum resource allocation for the first
process on the at least two nodes independent of the computer
resources needed by other processes running on the computer
network; and
redistributing computer resources on the network so that the
first process is provided the minimum resource allocation for the
first process is guaranteed should insufficient network resources
by available.
The following references are relied on by the examiner:
Sumimoto 5,522,070 May 28, 1996
Culbert 5,838,968 Nov. 17, 1998
(filing date Mar. 1, 1996)
Hauser et al. (Hauser) 5,889,956 Mar. 30, 1999
(filing date July 18, 1996)
All claims on appeal stand rejected under 35 U.S.C. § 103.
As evidence of obviousness as to claims 1-5 and 9-16, the
examiner relies upon Culbert in view of Sumimoto. As to claim 7,
the examiner adds Hauser to the initial combination of
references.
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Rather than repeat the positions of the appellant and the
examiner, reference is made to the brief and reply brief for
appellant's positions, and to the answer for the examiner's
positions.
OPINION
As embellished upon here, we sustain the rejection of claims
1-5, 7, 9-13 and 15 for the reasons set forth by the examiner in
the answer, but reverse the rejection with respect to claims 14
and 16, essentially for the reasons argued by appellant in the
brief and reply brief.
In considering appellant's arguments in the brief and reply
brief, they focus initially upon the subject matter of
independent claim 1 on appeal based upon the feature recited
therein that the minimum resource allocation for the first or
high priority process must be guaranteed as urged initially at
the bottom of page 7 of the principal brief on appeal and
summarized in the paragraph bridging pages 11 and 12 of the
principal brief on appeal. As to this feature, we disagree with
appellant's urgings between pages 7 and 12 of the principal brief
on appeal that the principal reference to Culbert does not teach
or suggest this feature.
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For emphasis, in our reasoning we make note of the teachings
at column 7, lines 48-51, which is repeated essentially at column
8, lines 35-37, which teach essentially that it is the programmer
who specifies the required resources for each task, the specifics
of which are basically quantified according to resource manage-
ment principals associated with the resource manager 170 in
Figure 1 of this reference. Most significantly, as argued by the
examiner in the answer, is this teaching at column 8, lines
19-23:
In the present embodiment tasks have three
classes, error intolerant, error-tolerant realtime,
and non-realtime. To guarantee proper functioning
of error intolerant tasks, the resource manager must
reserve resources for the worst-case usage scenario
of these tasks (emphases added).
The significance of this is recognized at the middle of page
8 of the principal brief on appeal. The plain teaching here is
that the minimum resources are guaranteed for the highest
priority level(s) which obviously, within the context of the
quoted material, (is) are error intolerant tasks. We also, in
light of this quoted material, disagree with appellant's urging
at the top of page 2 of the reply brief that "the term [reserve]
is given a traditionally dictionary meaning. By definition, to
'reserve' resources is to set some resources aside or to keep
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some resources back for future use or for some specific purpose."
From our point of view, as well as we believe the artisan's,
this recognition alone substantially teaches or the artisan
would have recognized the use of the word "reserve" as meaning
guaranteeing a minimum number of available resources for future
use or specific purposes, as tuaght in Culbert
We continue now with our noted teachings that are
significant in our conclusion that the feature of independent
claim 1 on appeal that a first process is guaranteed its
resources should insufficient network resources become available.
This paraphrase of or the language at the end of claim 1 on
appeal does not say for or with respect to what the
unavailability or insufficiency occurs. However, this alone is
not dispositive of the issue since the operation of the Update
Resource Measurement routine activates timers on a routine bases
as discussed at the bottom of column 8, yet it is stated at
column 8, lines 57-59 "that error intolerant tasks never have
their resource utilization records updated with actual use."
At column 9, lines 20-23 it is indicated that the act of
retrieving resources from an existing task is called degradation
which is essentially depicted in Figure 4 of Culbert. The
concept of degradation "occurs when a task is asked to give up
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some of its resources and move to a lower run level" as discussed
at lines 22 and 23. Thus, appellant's assertion at the middle of
page 9 of the principal brief that Culbert does not teach
forcibly taking resources away from the second group of tasks
even if they are a priority lower than that the first task is not
well received. It is further noted that corresponding teachings
exists at column 9, lines 27 and 28 and at column 11, lines 11
and 12 that "Tasks with lower priority will always be degraded as
much as possible before any high priority task." In the context
of the promotability of tasks in Figure 5, a corresponding
complementary teaching exists at column 12, lines 36-37.
Finally, we find equally compelling the teaching at column 11,
lines 5-6 that a "task can respond that it can not be changed and
can not give up any resources."
Thus, it is clear to us that the teaching value of Culbert
at least may be fairly stated to ensure that a high priority
process is guaranteed sufficient network resources irrespective
of any effect on lower priority tasks which will be degraded as
much as possible before any high priority task.
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Because no arguments are presented for our consideration in
the brief or reply brief as to claims 2-5, 9-13 and 15 as to the
first stated rejection, the rejection of these claims is also
sustained.
We note further here that in the context of the first and
second stated rejections, appellant presents no arguments with
respect to the Sumimoto reference relied upon by the examiner for
its secondary teachings in the brief and reply brief. Only the
mere recognition of its reliance by the examiner as a part of the
rejections is noted in the brief discussion of the statement of
the rejection at the bottom of page 10 of the principal brief on
appeal. The top of page 11 of the principal brief on appeal
indicates that appellant does not intend to contest the
combinability of Culbert and Sumimoto within 35 U.S.C. § 103 and
the remaining arguments in the brief and reply brief do not.
Before we consider the subject matter of argued dependent
claim 14 and independent claim 16, we note further that no
arguments have been presented for our consideration as to the
second stated rejection involving claim 7 and the further
teaching value of Hauser. The brief statement at page 15 of the
principal brief on appeal traverses the rejection only for the
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reasons advanced with respect to claim 1, which we have just
found to be insufficient to persuade us that the examiner's
position is in error with respect to the rejection of
representative claim 1 on appeal. Furthermore, no arguments
are presented for our consideration in the second stated
rejection as to the additionally relied upon reference to Hauser.
As a final matter, we reverse the rejection of argued
dependent claim 14 and its corresponding features recited in
independent claim 16. The positions set forth by the examiner at
pages 7 and 8 of the answer and the corresponding responsive
arguments at pages 11 and 12 of the answer do not persuade us of
the unpatentability of claims 14 and 16. In fact, it appears to
us that the examiner has not established a prima facie case of
obviousness of these claims.
In studying the examiner's initial statement of the
rejection at page 7 of the answer, the examiner recognizes that
Culbert does not actually teach the essential feature of claim 14
that the reallocation occurs irrespective of an amount of
computer resources necessary for the second process to run on the
computer network. This admission by the examiner is further
stated to be recognized at page 11 of the answer. The examiner's
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line of reasoning at page 7 of the answer relies upon "design
choice" as a line of reasoning from which the artisan would
conclude that Culbert suggests the feature at the end of claim 14
on appeal. The examiner's line of reasoning at pages 11 and 12
in the answer attempts to persuade us of the suggestibility of
Culbert as to the questioned feature. We find none of these
positions of the examiner to be persuasive.
The examiner's line of reasoning essentially stops short of
meeting or suggesting the requirements of claims 14 and 16 in a
corresponding manner even as admitted in essence by the examiner.
The reasoning appears to be based upon mere speculation and
hindsight. There is no teachings or suggestions relied upon by
the examiner to buttress the actual rationale of the examiner
without additional prior art; even Sumimoto is not relied upon by
the examiner to buttress the examiner's reasoning with respect to
Culbert.
Essentially, we are not able to conclude that it would have
been obvious to the artisan to modify Culbert's system whereas
essentially the examiner merely sets forth a position at the
bottom of page 11 in the answer that Culbert merely suggests "the
possibility of modifying the Culbert system." The categorization
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of the three classes of tasks at column 8, lines 19-23, as
reproduced earlier in this opinion relating to error intolerant,
error-tolerant realtime and non-realtime tasks, is not further
developed in Culbert. Although we agree with the examiner's
view that Culbert teaches that guaranteed minimum resources
irrespective of any other tasks that may request resources is
reasonably taught and suggested in Culbert to the extent we have
indicated earlier in this opinion as applicable to representative
claim 1 on appeal, the reference falls far short of suggesting
that this occurs "irrespective of an amount of computer resources
necessary for the second process to run on the computer network"
as set forth at the end of claim 14 on appeal and in essence in
independent claim 16 as well.
In summary, we have affirmed the rejection of claims 1-5, 7,
9-13 and 15 but have reversed the rejection of claims 14 and 16.
Therefore, the decision of the examiner is affirmed-in-part.
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No subsequent action in connection with this appeal may be
extended under 37 CFR § 1.136(a).
AFFIRMED-IN-PART
James D. Thomas )
Administrative Patent Judge )
)
)
)
Lee E. Barrett ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Lance Leonard Barry )
Administrative Patent Judge )

JDT/cam
Appeal No. 2004-2175
Application 09/086,627
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James M. Stover
NCR Corporation
1700 South Patterson Blvd. WHQ4
Dayton, OH 45479