Ex Parte Calder et al

Patent Trial and Appeal Board

Mar 28, 2018

12479195 (P.T.A.B. Mar. 28, 2018)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/479,195 06/05/2009 Bradley Gene Calder 327077.01/MFCP. 147978 1956
45809 7590 03/30/2018
SHOOK, HARDY & BACON L.L.P.
(MICROSOFT TECHNOLOGY LICENSING, LLC)
INTELLECTUAL PROPERTY DEPARTMENT
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
EXAMINER
SYED, FARHAN M
ART UNIT PAPER NUMBER
2165
NOTIFICATION DATE DELIVERY MODE
03/30/2018 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):
IPDOCKET@SHB.COM
IPRCDKT@SHB.COM
usdocket@ micro soft .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRADLEY GENE CALDER, VIKRAM DHANESHWAR,
SRIRAM KRISHNAN, JU WANG, SAMUEL JAMES MCKELVIE, and
ZHE YANG
Appeal 2017-004351
Application 12/479,195
Technology Center 2100
Before ST. JOHN COURTENAY III, DENISE M. POTHIER, and
LARRY J. HUME, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1—6, 9-14, 16, 18, and 20—25, which are all the claims pending in this
application. Claims 7, 8, 15, 17, and 19 are cancelled. We have jurisdiction
over the pending claims under 35 U.S.C. § 6(b).
We affirm-in-part.
Appeal 2017-004351
Application 12/479,195
STATEMENT OF THE CASE
Introduction
Appellants’ invention relates to “systems, methods and computer
storage media for geographically organizing the storage of data and hosted
services in a distributed computing environment.” (Spec. 13).
Exemplary Claim
1. A method utilizing a computing processor and memory
for geographically organizing the storage of data and hosted
services in a distributed computing environment, the method
comprising:
receiving one or more allocation constraints for an
affinity group, the affinity group being a grouping of storage
accounts and computation accounts with an assigned affinity;
identifying, based in part on the one or more allocation
constraints and a weighted coin-toss accounting for a worst-
case capacity of resources at different geo-domains, a geo­
domain for access to an account from the geo-domain and for
physical storage of the account, the account being associated
with the affinity group, [LI] the account comprising a storage
account for storing data used in association with the hosted
service and a computation account for storing code of the
hosted service;
identifying a stamp of the geo-domain; and
storing the account in the stamp, wherein the worst-case
capacity of resources is defined as a [L2] maximum resource
load to which a given geo-domain would experience when all
currently stored accounts at the geo-domain maximize a
measured resource.
(Emphasis added regarding contested limitations LI and L2).
2
Appeal 2017-004351
Application 12/479,195
Rejection
Claims 1—6, 9—14, 16, 18, and 20-25 are rejected under pre-AIA
35 U.S.C. § 103(a) as being obvious over the combined teachings and
suggestions of Romem et al. (U.S. 2009/0070337 Al, published Mar. 12,
2009) (hereinafter “Romem”), Gates et al. (U.S. 2008/0080552 Al,
published Apr. 3, 2008) (hereinafter “Gates”), Koutsoupias et al., Worst-
Case Equilibria, 1563 STACS ’99, Lecture Notes in Computer Science
401—413 (1999) (hereinafter “Koutsoupias”), and Slik et al. (U.S. 7,546,486
B2, issued June 9, 2009) (hereinafter “Slik”).
Issue on Appeal
Did the Examiner err in rejecting claims 1—6, 9—14, 16, 18, and 20—25
as being obvious over the cited combination of references under pre-AIA
35 U.S.C. § 103(a)?
ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. To the extent Appellants have not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 41.37(c)(l)(iv).
Rejection of Independent Claim 1 under pre-AIA 35 U.S.C. § 103(a)
The Examiner finds the proffered combination of Romem, Gates,
Koutsoupias, and Slik teaches or suggests all limitations of independent
claims 1, 14, and 20. (Final Act. 2—23). We find contested limitation LI is
dispositive to the appeal of the rejection of independent claim 1, and the
claims which depend therefrom.
3
Appeal 2017-004351
Application 12/479,195
Issue: Under pre-AIA 35 U.S.C. § 103(a), did the Examiner err by
finding Romem, Gates, Koutsoupias, and Slik collectively teach or suggest
contested limitation:
[LI] the account comprising a storage account for storing data
used in association with the hosted service and a computation
account for storing code of the hosted service[,\
within the meaning of representative claim l?1 (Emphasis added).
Regarding limitation LI of claim 1, Appellants contend: “Romen
[sic] does not describe ‘storing code of the hosted service’ as required by
claim 1. Romem is only concerned with locally storing a portion of a
globally coherent database system, and not the services (or code) that may
utilize the data.” App. Br. 9. Appellants refer to their Specification
(1134—35), and urge that “[b]y storing both data and code, claim 1 has the
benefit of improving latency and reducing bandwidth.” (App. Br. 9)
(emphasis added).
The Examiner disagrees (Ans. 2), and finds similarities between the
supporting description in Appellants’ Specification (H 27—31, 33, and
Fig. 2), and paragraphs 3, 5, and 50-54 of Romem.
Similarly, Romen [sic] [H 3, 5] discloses a hosting computer
unit that is associated to a distributed database, where a
distributed database is stored on a number of distributed storage
devices (e.g. data center/server farm). See further Romen fsic1
yarasrayh 100541, where the global storage sub-system
includes a unified database of the local databases, which are
stored in the local data storage sub-system in a manner that
ensures geography-based resilience[,]
1 We give the contested claim limitations the broadest reasonable
interpretation (BRI) consistent with the Specification. See In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
4
Appeal 2017-004351
Application 12/479,195
[and] Romem, Figure 1 [^fl[ 50-53], which discloses a geo­
location hierarchy of a geographically distributed storage
system, where each site [in Figure 1] is geographically
organized to store data (e.g. or access data elements) and hosted
services (e.g. global storage sub-system), where each site
includes a hosted computing unit that further includes remotely
located data storage devices.
(Ans. 2-3).
The Examiner additionally finds the cited secondary Gates reference
(124) teaches:
resources provided by the third-party service provider (e.g.[,]
hosted service) can be centrally located and/or distributed at
various geographical locations], where any number of data
center machines provide resources (e.g.[,] data), where the data
center machines can be utilized for storing/retrieving data,
effectuating computation tasks, etc. As such, the claimed
feature is disclosed by the cited art.
(Ans. 3) (emphasis added).
Claim Construction
Applying a broad but reasonable interpretation to the language of
claim 1, we construe “storing data used in association with the hosted
service” as storing non-executable data used in association with the hosted
service. Regarding the second portion of contested limitation LI, we
construe “storing code of the hosted service” as storing executable code of
the hosted service. (Emphasis added). Our construction comports with the
plain and ordinary meaning of the terms “code” and “data,” as known to
artisans, and is also fully consistent with the corresponding description in
Appellants’ Specification (e.g., 133): “The hosted service is a collection of
code that resides on a computing device.” (Emphasis added).
5
Appeal 2017-004351
Application 12/479,195
Given this construction (id.), we turn to the evidence relied upon by
the Examiner (Final Act. 3—7; Ans. 2—3). We find the cited paragraphs of
Romem 3, 5, 50—54, and Fig. 1) are silent regarding any mention of
storing code or executable code, as distinguished from data, much less
“storing code of the hosted service,” as claimed. (Claim 1). Similarly, we
find Gates (124) is silent regarding any mention of code or executable code.
Further regarding the rejection of claim 1, we find the Examiner has
not shown that the additionally cited Koutsoupias or Slik references2
overcome the aforementioned deficiency of Romem and Gates. Because the
Examiner has not established that the proffered combination of Romem,
Gates, Koutsoupias, and Slik teaches or suggests “a computation account for
storing code of the hosted service” (claim 1), we are constrained on this
record to reverse the Examiner’s rejection of independent claim 1, and of
claims 2—6, 9—13, and 21, which depend therefrom. (Emphasis added).
Rejection of Independent Claims 14 and 20
underpre-AIA 35 U.S.C. § 103(a)
We note remaining independent claims 14 and 20 are silent regarding
the contested “storing code of the hosted service” limitation we have
addressed above regarding claim 1. Claim 14 broadly recites “storage of the
2 Although the Examiner relies on the combination of Romem, Gates,
Koutsoupias, and Slik in the rejection heading (Final Act. 2—3), we note the
Examiner does not map any particular feature of claims 1—6, 9—11, 13, and
21 to Slik. Of claims 2—6, 9-13, and 21, which depend directly or indirectly
from independent claim 1, Slik is only applied as evidence to support the
rejection of dependent claim 12. (See Final Act. 10). Slik is relied upon to
support the rejection of remaining claims 14, 16, 18, 20, and 22—25. (See
Final Act. 15, 20).
6
Appeal 2017-004351
Application 12/479,195
hosted service.” Claim 20 broadly recites “storage of data and hosted
services in a distributed computing environment.”
Based on the above evidence, the Examiner has shown the storage of
data associated with the hosted service in the cited references regarding
claim 1, and Appellants’ arguments are unavailing regarding claim 14, e.g.,
“[b]y storing both data and the hosted service, claim 14 has the benefit of
improving latency and reducing bandwidth.” (App. Br. 13).
For both claims 14 and 20 (and claim 1), Appellants also contest the
recited “maximum resource load” feature. In the Answer, the Examiner
explains the basis for the rejection, and finds:
The Examiner notes that it is generally well known that there
are a plurality of algorithms in the field of endeavor which
calculates or determines such a value. The cited art used is one
such example, where Koutsoupias calculates the worst-case
equilibria for a plurality of links, where links are
communications links that transmit packets to and from an
agent, as disclosed in Koutsoupias, see vase 405. Koutsoupias.
see section 4. vase 41L further discloses calculating a worst-
case equilibria, where m is considered] agents (e.g. data
storage devices), and links are communication links that
connect the agents. A mathematical equation is applied to
determine a maximum optimum value that establishes an upper
bound for the case of m identical links. See further
Koutsoupias, see pages 411-412, Theorems 7 and 8, which
illustrates the worst case equilibria for m identical links (e.g.
geo-domains), where the probability that the maximum load on
all links does not exceed (T-l)opt is at least (1- 1 /m.). Theorem
7 illustrates the expected load for m identical links (e.g. geo­
domains) and Theorem 8 further illustrates the coordination
ratio for any number of agents (e.g. resources) and m links. The
Examiner notes this equation fulfills the variable requirements
as claimed in this feature and the theorem is an intended use of
determining maximum load on all resources associated to m
links. As such the claimed feature is disclosed by the cited art.
7
Appeal 2017-004351
Application 12/479,195
(Ans. 4).
We note Appellants have not responsively addressed the Examiner’s
specific findings (id.) by filing a Reply Brief. Therefore, on this record and
based upon a preponderance of the evidence, we are not persuaded the
Examiner erred. Nor do we find Appellants’ “teaching away” argument
persuasive regarding claim 20:
Koutsoupias, in fact, teaches away from using a
“maximum resource load to which a given geo-domain would
experience when all currently stored accounts at the geo­
domain maximize a measured resource” as recited in claim 20.
Koutsoupias explains that “the expected load MJ of any link j is
at most (2 - l/m)opt” (emphasis added). So for Koutsoupias,
each additional agent has a smaller and smaller effect on the
load, which would be different from the behavior of claim 20.
(App. Br. 15).
However, a “finding that the prior art as a whole suggests the
desirability of a particular combination need not be supported by a finding
that the prior art suggests that the combination claimed by the patent
applicant is the preferred, or most desirable, combination.” In re Fulton,
391 F.3d 1195, 1200 (Fed. Cir. 2004). Teaching an alternative or equivalent
method, however, does not teach away from the use of a claimed method. In
re Dunn, 349 F.2d 433, 438 (CCPA 1965). See DePuy Spine, Inc. v.
Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009) (“A
reference does not teach away ... if it merely expresses a general preference
for an alternative invention but does not ‘criticize, discredit, or otherwise
discourage’ investigation into the invention claimed.”).
Here, we find Appellants have not shown that Koutsoupias criticizes,
discredits, or otherwise discourages the invention claimed. Moreover, for a
prima facie case of obviousness to be established, the reference(s) need not
8
Appeal 2017-004351
Application 12/479,195
recognize the same problem solved by the Appellants. See In re Kemps, 97
F.3d 1427, 1430 (Fed. Cir. 1996).
Therefore, to the extent Appellants incorporate and apply arguments
regarding combining the cited references from the rejection of independent
claim 1 to the rejection of independent claims 14 and 20, we similarly find
unavailing Appellants’ contention that Koutsoupias is solving a completely
different problem than the claimed solution. (App. Br. 11).
Accordingly, we sustain the Examiner’s rejection of remaining
independent claims 14 and 20, and remaining dependent claims 16, 18, and
22—25 (not argued separately). See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
We reverse the Examiner’s decision rejecting claims 1—6, 9-13, and
21 under pre-AIA 35 U.S.C. § 103(a).
We affirm the Examiner’s decision rejecting claims 14, 16, 18, 20,
and 22—25 under pre-AIA 35 U.S.C. § 103(a).
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). See
37 C.F.R. §41.50(f).
AFFIRMED-IN-PART
9