Ex Parte Carter et alDownload PDFPatent Trial and Appeal BoardFeb 28, 201712612903 (P.T.A.B. Feb. 28, 2017) Copy Citation 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. 12/612,903 11/05/2009 Stephen R. Carter 26530.163 (IDR-1839) 5354 47699 7590 03/02/2017 HAYNES AND BOONE, LLP (26530) IP Section 2323 Victory Avenue Suite 700 Dallas, TX 75219 EXAMINER GREENE, JOSEPH L ART UNIT PAPER NUMBER 2452 NOTIFICATION DATE DELIVERY MODE 03/02/2017 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): ipdocketing@haynesboone.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STEPHEN R. CARTER, LLOYD LEON BURCH, CAROLYN BENNION McCLAIN, and DALE ROBERT OLDS Appeal 2016-003871 Application 12/612,903 Technology Center 2400 Before ALLEN R. MacDONALD, NABEEL U. KHAN, and PHILIP A. BENNETT, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-003871 Application 12/612,903 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b). Exemplary Claim Exemplary claim 1 under appeal reads as follows (emphasis added): 1. A system for controlling operation of a cloud computing environment comprising a storage cloud (S-cloud) and a computing cloud (C-cloud), the system comprising: a repository for storing data regarding characteristics of the cloud computing environment, wherein the stored data includes policy notations designating compliance or noncompliance of the stored data with policy, and wherein the stored data is generated in accordance with a prospector policy and comprises S-cloud operational characteristics data, C-cloud operational characteristics data, S-cloud reputation data, and C-cloud reputation data; an analyst module for analyzing the stored data in combination with external report information regarding the cloud computing environment and for providing results of the analysis to a controller comprising a processor, wherein the controller evaluates the provided analysis results and issues instructions for controlling operation of the cloud computing environment based on the evaluating. Rejection on Appeal The Examiner rejected claims 1—20 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Meijer et al. (US 2008/0082601 Al, published Apr. 3, 2008), Wei (US 2010/0251329 Al, published Sept. 30, 2010), and Hotta et al. (US 8,566,932 Bl, issued Oct. 22, 2013).1 1 As to this rejection, our decision as to the rejection of claims 1 and 6 is determinative. Therefore, except for our ultimate decision, the rejection of claims 2—5 and 7—20 is not discussed further herein. 2 Appeal 2016-003871 Application 12/612,903 Appellants ’ Contentions2 * 1. Appellants contend that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a) because: S-cloud and C-cloud operational characteristics data. . . are described in 0014 of the specification as operational characteristics for a S-cloud and C-cloud “stored in an S-cloud repository” and “C-cloud repository/4 respectively. In this case, the Examiner does not appear to provide any teaching or suggestion of. . . “C-cloud operational characteristics data.” App. Br. 11. 2. Appellants further contend that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a) because: [T]o the extent that the Examiner relies upon official notice by stating that “the prospective data is inherent as the system selects data of interest. Thus, the prospector policy is given” on page 3 of the Office Action, Appellant respectfully submits that the Examiner’s characterization of the claim language as being inherent is improper. App. Br. 12. In the present case, Appellant respectfully submits that the “stored data [that] is generated in accordance with a prospector policy and comprises S-cloud operational characteristics data, C-cloud operational characteristics data” does not “necessarily” flow from the cited portion of Meijer. The cited portion of Meijer does not identify any policy for generating stored data, let alone stored data that is S-cloud operational characteristics and C-cloud operational characteristics data that is generated in accordance with a prospector policy. 2 These contentions are determinative as to the rejection on appeal. Therefore, although we find Appellants’ remaining contentions unpersuasive, they are not discussed herein. 3 Appeal 2016-003871 Application 12/612,903 App. Br. 13, emphasis added. 3. Appellants further contend that the Examiner erred in rejecting claim 6 under 35 U.S.C. § 103(a) because: Appellant has studied the Meijer . . . reference[] and was unable to identify any teachings of the recited claim features. App. Br. 20. [In] Meijer, there is no teaching or suggestion regarding “evaluating policy and cloud specifications and compute specifications along with the analysis results to determine whether desired operational characteristics of the cloud computing environment are being realized, wherein the issued instructions comprise instructions for modifying job spawning and distribution processes of the cloud computing environment as indicated by the evaluating” (emphasis added) as recited by claim 6 of the present application. App. Br. 21. Issues on Appeal Did the Examiner err in rejecting claims 1 and 6 as being obvious? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. As to Appellants’ above contentions 1 and 2 (directed to claim 1), we agree. We conclude, consistent with Appellants’ argument, there is insufficient articulated reasoning to support the Examiner’s findings as to stored data (S-cloud operational characteristics and C-cloud operational characteristics data) that is generated in accordance with a prospector policy. Therefore, we conclude that there is insufficient articulated reasoning to 4 Appeal 2016-003871 Application 12/612,903 support the Examiner’s final conclusion that claim 1 would have been obvious to one of ordinary skill in the art at the time of Appellants’ invention. As to Appellants’ above contention 3 (directed to claim 6), we agree. We conclude, consistent with Appellants’ argument, there is insufficient articulated reasoning to support the Examiner’s findings as to the issued instructions comprising instructions for modifying job spawning and distribution processes of the cloud computing environment as indicated by the evaluating. Therefore, we conclude that there is insufficient articulated reasoning to support the Examiner’s final conclusion that claim 6 would have been obvious to one of ordinary skill in the art at the time of Appellants’ invention. CONCLUSIONS (1) Appellants have established that the Examiner erred in rejecting claims 1—20 as being unpatentable under 35 U.S.C. § 103(a). (2) On this record, these claims have not been shown to be unpatentable. DECISION The Examiner’s rejection of claims 1—20 is reversed. REVERSED 5 Copy with citationCopy as parenthetical citation