Ex Parte Burghard et al

Patent Trial and Appeal Board

Oct 30, 2014

12236678 (P.T.A.B. Oct. 30, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte STEPHEN JOHN BURGHARD, IAN JAMES MITCHELL,
and ANDREW WRIGHT
____________________

Appeal 2012-001544
Application 12/236,678
Technology Center 2100
____________________

Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-001544
Application 12/236,678

2
I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1–19. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

A. INVENTION
According to Appellants, the invention relates to the field of data
processing and in particular to managing a transaction log (Spec. 1, ll. 5–6).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A method for managing a transaction log in a transaction
processing system, the method comprising:
maintaining a transaction log of recoverable changes
made by transaction processing tasks, each task having an
associated transaction type;
storing a log management policy including a log threshold
and a plurality of possible actions associated therewith;
storing a profile of typical log resource usage
characteristics of tasks associated with different types of
transaction;
monitoring usage of the log by transaction processing
tasks to determine when the log threshold is reached; and
in response to determining that the log threshold has been
reached:
identifying an active task having the oldest log
entry of all active tasks;
Appeal 2012-001544
Application 12/236,678

3
comparing the log resource usage of the identified
task to the typical log resource characteristics for its
associated type of transaction;
selecting, in dependence on the comparison, one of
the plurality of possible actions associated with the
threshold reached; and
taking the selected action.

C. REJECTION
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
San Andres US 5,956,489 Sept. 21, 1999
Goldstein US 2002/0198984 A1 Dec. 26, 2002
Olstad US 2003/0115429 A1 June 16, 2003
Pagel US 6,889,214 B1 May 3, 2005
Claims 1 and 10 stand rejected on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claims 1
and 10 of copending Application No. 12/252,066 (hereafter “the ‘066
application”).1
Claims 1, 2, 5–7, 9–11, 14–16, 18, and 19 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over San Andres and Goldstein.
Claims 3, 4, 12, and 13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over San Andres, Goldstein, and Pagel.

1 Patent Application No. 12/252,066 has been issued as US Patent No.
8,020,046 on September 13, 2011. Thus, the rejection is no longer
provisional.
Appeal 2012-001544
Application 12/236,678

4
Claims 8 and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over San Andres, Goldstein and Olstad.

II. ISSUES
The principal issues before us are whether the Examiner has erred in
finding:
1) Claims 1 and 10 would have been obvious over claims 1 and 10 of
the ‘066 application. In particular, the issue turns on whether a skilled
artisan at the time the invention was made would have found it obvious that
a profile of “typical” log resource usage characteristics as taught by the ‘066
application comprises a historical profile comprising a set of “acceptable”
values for characteristics of the log resource usage.
2) The combination of San Andres and Goldstein teaches or would
have suggested a “maintaining a transaction log of recoverable changes
made by transaction processing task,” “storing a log management policy
including a log threshold” and “in response to determining that the log
threshold has been reached . . . identifying an active task having the oldest
log entry of all active tasks” (claim 1, emphases added).

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
San Andres
1. San Andres discloses receiving update transactions from
individual application servers and forwarding the update transactions for
processing to all application servers that run the same service application,
Appeal 2012-001544
Application 12/236,678

5
wherein each application server maintains a replicated copy of the service
content data (Abs.).
2. An arbiter replicates service content data (col. 16, ll. 39–49),
and a service application can guarantee the atomicity of a transaction by
providing a rollback (backup and restore) mechanism for restoring the
system to the state it was in immediately prior to the processing of the
transaction (col. 24, ll. 46–57).
3. Each arbiter maintains a transaction log on the hard disk of its
respective arbiter, wherein the transaction logs are trimmed by: removing the
transactions that have already been processed by members currently running,
removing all transactions older than service group backup timestamp,
removing transactions so as to maintain free disk space above a particular
threshold or keeping at least a number of the most recent transactions (col.
29, l. 53 to col. 30, l. 19).
Goldstein
4. Goldstein discloses monitoring transactional servers ([49]) and
generating reports containing a listing of transactions and the thresholds
used for evaluating response times ([135];Table 1), wherein a transaction
breakdown report displays a breakdown of times for multiple transactions to
determine whether the abnormal transaction response is specific to one or
more particular transactions or is common to all transactions as seen from a
specific location ([160]).
IV. ANALYSIS
Nonstatutory Obviousness-Type Double Patenting
As for the obviousness-type double patenting rejection, although
Appellants concede “acceptable” values disclosed by the ‘066 application
Appeal 2012-001544
Application 12/236,678

6
“may be similar” to “typical” values claimed, Appellants contend “[w]hat
may be ‘acceptable’ is not necessarily the same as what is ‘typical’” (App.
Br. 11, emphasis added). However, the Examiner finds “[t]he concept of
‘typical log resource usage characteristics of task’” as disclosed by
Appellants “is an obvious variant of ‘acceptable values for characteristics of
the log resource’” as taught by the ‘066 application (Ans. 20). In particular,
the Examiner concludes it would have been obvious “to equate typical
resource usage characteristics of tasks” as “acceptable values for resource
usage” because “typical usage characteristics of processing tasks generally
constitute acceptable characteristics for resource utilization of such tasks”
(id.)
We find the Examiner provided a reasoned basis for the obviousness-
type double patenting rejection, which is based on a lack of patentable
distinction between the inventions defined in claims 1 and 10 of the present
application when compared to the inventions defined in claims 1 and 10 of
the cited copending application. A rejection for obviousness-type double
patenting is not based on what is taught in different patents or applications,
but on whether the claims in the separate applications are merely obvious
variants of each other. That is, a rejection for obviousness-type double
patenting is not based on whether a claim term is “necessarily the same as”
what is claimed in the separate application (App. Br. 11, emphasis added),
but rather it is based on a lack of patentable distinction between the claims
of the two applications.
Here, we agree with the Examiner’s finding “[t]he concept of ‘typical
log resource usage characteristics of task’” as disclosed by Appellants “is an
obvious variant of ‘acceptable values for characteristics of the log resource’”
Appeal 2012-001544
Application 12/236,678

7
and thus it would have been obvious “to equate typical resource usage
characteristics of tasks” as “acceptable values for resource usage” (Ans. 20).
Even Appellants concede “acceptable” values disclosed by the ‘066
application “may be similar” to “typical” values claimed (App. Br. 11).
Thus, we find a skilled artisan at the time the invention was made would
have found it obvious that a profile of “typical” log resource usage
characteristics as taught by the ‘066 application comprises a historical
profile comprising a set of “acceptable” values for characteristics of the log
resource usage.
Accordingly, Appellants have shown no error with the Examiner’s
rejection of claims 1 and 10 over claims 1 and 10 of the ‘066 application.
35 U.S.C. § 103
Claims 1, 2, 5–7, 9–11, 14–16, 18, and 19
Appellants contend “the notion of recoverable changes is associated
with the well-known two-step (or step-phase) commit protocol” and thus
“San Andres is different than the claimed invention” (App. Br. 12) since
“the claimed invention is directed to a specific and well-known commit
protocol . . .” (App. Br. 13). According to Appellants, “the transaction log
of San Andres does not teach the specific transaction log (i.e., of
‘recoverable changes’) being claimed” (App. Br. 15).
Appellants also contend: 1) San Andres’s “trim policy options . . . do
not teach multiple possible actions associated with a single log threshold”
but instead “teaches 5 separate actions” (App. Br. 16); 2) in San Andres,
“the ‘timestamp’ is an identifier associated with a log file — not the
transaction log” (App. Br. 17); 3) San Andres does not mention “the claimed
‘transaction processing tasks’ and the usage of the log by these transaction
Appeal 2012-001544
Application 12/236,678

8
processing tasks” and thus does not disclose “monitoring usage of the log
by transaction processing tasks” (App. Br. 18); and 4) although the
Examiner “refers to a teaching of ‘transactions older than service group
backup timestamp’ [in San Andres],” “finding old transactions is not the
same as finding the oldest” and San Andres “is silent as to identifying the
claimed active task” (App. Br. 19).
Appellants further contend “Goldstein is entirely silent regarding log
resource usage and typical log resource characteristics” (App. Br. 22).
However, the Examiner points out the claim language does not require
“any concept of associating recoverable changes to commit protocol” and
one of ordinary skill in the art “would understand that implementing
recoverable changes to transaction processing tasks may be accomplished
with various method that do not specifically include a commit protocol”
(Ans. 21). The Examiner finds “San Andres teaches that transaction
processing tasks maintained in the transaction log may be recoverable” (Ans.
22).
The Examiner further finds: 1) “San Andres teaches a method of
trimming a transaction via one of multiple alternative trim policies”;
2) “[t]imestamps of transaction processing tasks within a transaction log
may reasonable be construed to be a characteristic of the transaction log”
such that “monitoring the timestamps of transaction will determine when a
threshold is reached” (Ans. 22–23); 3) “the concept of transaction processing
tasks . . . includes any task performed by a processor that may be included in
a transaction log” wherein “San Andres teaches monitoring usage of the log
by transaction processing tasks to determine when the log threshold is
reached” with the transaction processing tasks being “recorded in the
Appeal 2012-001544
Application 12/236,678

9
transaction log such that the transaction log maintains usage of the log by
these transaction processing tasks” (Ans. 23–24); and 4) “San Andres
teaches identifying and removing the oldest transaction along with other old
transactions that are older than a predefined threshold” (Ans. 24).
The Examiner also finds “Goldstein teaches logging transactions such
that the usage of resources consumed by the transaction is being logged”
wherein Goldstein when combined with San Andres would have suggested
the claimed limitations (Ans. 25).
We find no error with the Examiner’s underlying factual findings and
ultimate legal conclusion of obviousness.
Although Appellants contend “the claimed invention is directed to a
specific and well-known commit protocol” (App. Br. 13), such contentions
are not commensurate in scope with the recitations of claim 1. That is, claim
1 does not recite any “commit protocol” (id.). We agree with the Examiner
the claim language does not require “any concept of associating recoverable
changes to commit protocol” (Ans. 21).
Thus, we give the claims, as recited, their broadest reasonable
interpretation consistent with the Specification. See In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997).
We note that by contending “the transaction log of San Andres does
not teach the specific transaction log (i.e., of ‘recoverable changes’) being
claimed” (App. Br. 15), such contention urging patentability is predicated on
non-functional descriptive material (i.e., the type or content of the
transaction log/data that is being maintained). That is, the “transaction log”
is the type/content of data to be maintained, but the particular content of the
maintained data is not positively recited as changing or affecting the manner
Appeal 2012-001544
Application 12/236,678

10
in which the steps or acts of the claimed method are performed, nor the
manner in which the data is to be maintained. (Claim 1).
Moreover, the informational content of the maintained transaction log
is not positively recited as actually being used to change or affect any
machine or computer function, within the broad scope of claim 1.
Thus, we conclude the recited “transaction log” is merely the type of
data to be maintained, and is merely non-functional descriptive material.
Similarly, we conclude “log management policy” and “profile” are also
merely the type of data to be stored, and thus, are also merely non-functional
descriptive material. The informational content of non-functional
descriptive material is not entitled to weight in the patentability analysis.
See Ex parte Nehls, 88 USPQ2d 1883, 1887–90 (BPAI 2008) (precedential);
Ex parte Curry, 84 USPQ2d 1272 (BPAI 2005) (informative) (Federal
Circuit Appeal No. 2006-1003, aff’d, Rule 36 (June 12, 2006)); Ex parte
Mathias, 84 USPQ2d 1276 (BPAI 2005) (informative), aff’d, 191 Fed.
Appx. 959 (Fed. Cir. 2006). See also MPEP § 2111.05, Eighth Edition,
Rev. 9, Aug. 2012.
Nevertheless, we give “transaction log” its broadest reasonable
interpretation as any maintained data relating to transactional changes that
are recoverable, as consistent with claim 1.
San Andres discloses receiving update transactions (FF 1) wherein a
rollback (backup and restore) mechanism is provided (FF 2). That is, San
Andres discloses maintaining update data relating to transactions (i.e., data
relating to transactional changes) wherein the data are recoverable (FF 1–2).
Thus, we agree with the Examiner’s finding “San Andres teaches that
Appeal 2012-001544
Application 12/236,678

11
transaction processing tasks maintained in the transaction log may be
recoverable . . .” (Ans. 22).
Although Appellants contend San Andres’s “trim policy options . . .
do not teach multiple possible actions associated with a single log threshold”
but instead “teaches 5 separate actions” (App. Br. 16), such contention is
not commensurate in scope with the recited language of the claims since the
claims do not recite any such multiple actions with a single threshold.
Further, the test for obviousness is not what San Andres teaches individually
but what the combined teachings would have suggested to one of ordinary
skill in the art. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986).
San Andres discloses trimming transaction logs by at least one of the
following policies: removing the transactions that have already been
processed, removing all transactions older than service group backup
timestamp, removing transactions so as to maintain free disk space above a
particular threshold or keeping at least a number of the most recent
transactions (FF 3, emphasis added). We agree with the Examiner’s finding
San Andres teaches or at the least would have suggested “a method of
trimming a transaction via one of multiple alternative trim policies”
(Ans. 22).
As to Appellants’ contention “the ‘timestamp’ [in San Andres] is an
identifier associated with a log file – not the transaction log” (App. Br. 17),
we agree with the Examiner’s finding “[t]imestamps of transaction
processing tasks within a transaction log may reasonable be construed to be
a characteristic of the transaction log” such that “monitoring the timestamps
of transaction will determine when a threshold is reached” (Ans. 23; FF 3).
Appeal 2012-001544
Application 12/236,678

12
Regarding Appellants’ contention San Andres does not disclose
“monitoring usage of the log by transaction processing tasks” (App. Br. 18),
we agree with the Examiner’s finding “San Andres teaches monitoring usage
of the log by transaction processing tasks to determine when the log
threshold is reached” with the transaction processing tasks being “recorded
in the transaction log such that the transaction log maintains usage of the log
by these transaction processing tasks” (Ans. 23–24; FF 3).
Considering Appellants’ contention “finding old transactions is not
the same as finding the oldest” and San Andres “is silent as to identifying
the claimed active task” (App. Br. 19), we agree with the Examiner’s finding
“San Andres teaches identifying and removing the oldest transaction along
with other old transactions that are older than a predefined threshold” (Ans.
24; FF 3). That is, we agree with the Examiner that finding old transactions
would at least have suggested finding the oldest transaction among the old
transactions (id.). Since the transactions are processed by members
currently running (FF 3), we find San Andres at least suggests that the old
transactions are of all active tasks.
As to Appellants’ contention “Goldstein is entirely silent regarding
log resource usage and typical log resource characteristics” (App. Br. 22),
the issue here is not what Goldstein teaches individually but what San
Andres and Goldstein combined would have suggested to one of ordinary
skill in the art See Merck, 800 F.2d at 1097. We agree with the Examiner’s
finding “Goldstein teaches logging transactions such that the usage of
resources consumed by the transaction is being logged” (Ans. 25; FF 3).
Thus, we agree with the Examiner that Goldstein when combined with San
Appeal 2012-001544
Application 12/236,678

13
Andres would have suggested log resource usage and typical log resource
characteristics (id.).
Accordingly, we find no error with the Examiner’s rejection of
claim 1, and claims 2, 5–7, 9–11, 14–16, 18, and 19 falling therewith (App.
Br. 12), over San Andres and Goldstein.
Claims 3, 4, 8, 12, 13, and 17
As for claims 3 and 4, although the Examiner makes a detail finding
that San Andres and Goldstein in further view of Pagel would have at least
suggested the claimed limitations (Ans. 18–19 and 25), Appellants merely
contend “Appellants have reviewed the Examiner’s cited passage [of Pagel]
and have found no such teaching” (App. Br. 23–24). However, since the
Examiner rejects the claims over San Andres, Goldstein and Pagel, the issue
here is not whether Pagel contains any such “teaching” but whether Pagel in
combination with San Andres and Goldstein would at least have suggested
the claim limitation. Furthermore, conclusory statements—such as
Appellants “have found no such teaching”—that are unsupported by factual
evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984); and Ex parte Belinne, No. 2009-004693, 2009 WL 2477843, slip
op. at 7–8 (BPAI Aug. 10, 2009) (informative), available at
http://www.uspto.gov/web/offices/dcom/bpai/its/fd09004693.pdf.
Accordingly, Appellants also fail to show the Examiner erred in
rejecting claims 3 and 4, and 12 and 13 falling therewith over San Andres
and Goldstein in further view of Pagel.
As for claims 8 and 17, Appellants merely contend “Olstad does not
cure the argued deficiencies of the combination of San Andres and
Appeal 2012-001544
Application 12/236,678

14
Goldstein” (App. Br. 26). However, as discussed above, we find no
deficiencies with respect to the Examiner’s reliance of San Andres and
Goldstein. Accordingly, we also find no error with the Examiner’s rejection
of claims 8 and 17 over San Andres and Goldstein in further view of Olstad.
V. CONCLUSION AND DECISION
The Examiner’s rejections of claims 1 and 10 under nonstatutory
obviousness-type double patenting and of claims 1–19 under 35 U.S.C.
§103(a) are affirmed.
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).

AFFIRMED

tj