Ex Parte Daly et al

Patent Trial and Appeal Board

Feb 23, 2018

13848355 (P.T.A.B. Feb. 23, 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.
13/848,355 03/21/2013 David M. Daly 0464-016/YOR920060510US3 7886
55459 7590 02/27/2018
PATENT PORTFOLIO BUILDERS, PLLC
P.O. BOX 7999
Fredericksburg, VA 22404
EXAMINER
WU, BENJAMIN C
ART UNIT PAPER NUMBER
2195
NOTIFICATION DATE DELIVERY MODE
02/27/2018 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):
Mailroom @ PPBLAW. com
T ripp @ PPBLAW. com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID M. DALY, PETER A. FRANASZEK,
and LUIS A. LASTRAS-MONTANO
Appeal 2017-009874
Application 13/848,3551
Technology Center 2100
Before JUSTIN BUSCH, JASON J. CHUNG, and
MATTHEW J. McNEILL, Administrative Patent Judges.
CHUNG, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-14. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
INVENTION
The invention is directed to task scheduling in computing systems.
Spec. ^ 2. Claim 1 is illustrative of the invention and is reproduced below:
1. A method for scheduling task requests, the method
comprising:
maintaining a plurality of queues for receiving a plurality
of task requests to be processed within a computing system, the
1 According to Appellants, the real party in interest is International Business
Machines. App. Br. 2.
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Application 13/848,355
plurality of task requests comprising high priority task requests
and low priority task requests;
identifying a low priority task request to be scheduled for
processing;
using a predictor mechanism to determine if interference
between the low priority task request and a high priority task
request is likely or unlikely, wherein interference is likely when
a determined probability indicates that the high priority task
request will be received during execution of the low priority task
request, the probability determined empirically using a historical
log of high priority task request submissions to calculate a
likelihood of receipt of high priority task requests at any given
time; and scheduling the low priority task request when
interference is unlikely.
REJECTIONS AT ISSUE
Claims 1—4, 6-11, 13, and 14 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Lin (US 2006/0168383 Al;
published July 27, 2006) (hereinafter, “Lin”) and Ghosal et al. (US
2005/0289312 Al; published Dec. 29, 2005) (hereinafter, “Ghosal”). Final
Act. 2-6.
Claims 5 and 12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Lin, Ghosal, and Apostol, Jr. et al. (US
7,095,752 B2; issued Aug. 22, 2006). Final Act. 6-7.
ANALYSIS
The Examiner finds although Lin teaches calculating predicted arrival
time of a high priority task based on historical information, Lin is silent as to
probability. Final Act. 4 (citing Lin ^ 21-24, 30). The Examiner finds
Ghosal teaches probability based on historical task arrival. Final Act. 4
(citing Ghosal 59, 117, Abst.). The Examiner finds it would have been
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obvious to a person having ordinary skill in the art at the time of the
invention to combine Lin and Ghosal to have a probability of task arrivals
based on historical information. Final Act. 4. Further, the Examiner finds
the modification would have been obvious to a person having ordinary skill
in the art to utilize Ghosal’s probability to incorporate the error ratio of
prediction calculation. Id. (citing Ghosal ^ 117).
Appellants argue Lin does not teach probabilities. App. Br. 6.
Furthermore, Appellants argue the Examiner admits that Lin does not teach
probability based on prediction information; claims 1 and 8, however, recite
probability based on a history of task requests, not probability based on
prediction information. Id. And Appellants argue there is no reason to
modify Lin to use probabilities because claims 1 and 8 pertain to a
probability of occurrences based on a history of occurrences whereas Lin is
looking at durations and times to complete. Id. at 7.
Moreover, Appellants argue the Examiner’s reason to combine is
flawed because the Examiner’s motivation of incorporating the error ratio of
prediction calculation is not the same as Appellants’ reason for using the
empirically derived probability of claim 1 and not the same type of
probability of claims 1 and 8. Id. In addition, Appellants argue Ghosal does
not teach determining probabilities empirically from the request history
because Ghosal teaches a discount ratio reflecting the probability that a
predicted request would arrive and is used in addition to the prediction of
request arrival as a threshold determination in whether to use a given
predicted request. Id. at 9. Appellants argue Lin’s estimating fails to teach
predicting. Reply Br. 3-5.
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Application 13/848,355
Regarding Appellants’ first argument, we disagree with Appellants
because one cannot show non-obviousness “by attacking references
individually” where the rejections are based on combinations of references.
In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re
Keller, 642 F.2d 413, 426 (CCPA 1981)). In this case, the Examiner relies
on Ghosal, not Lin, to teach probabilities. Final Act. 4 (citing Ghosal 59,
117); Ans. 4.
As for Appellant’s arguments pertaining to the Examiner’s reason to
combine Lin and Ghosal, we agree with the Examiner’s finding that it would
have been obvious to a person having ordinary skill in the art at the time of
the invention to combine Lin and Ghosal to have a probability of task
arrivals based on historical information. Final Act. 4. We also agree with
the Examiner that the modification would have been obvious to a person
having ordinary skill in the art to utilize Ghosal’s probability to incorporate
the error ratio of prediction calculation. Id. (citing Ghosal ^ 117). Thus, we
find that the Examiner articulated reasoning with rational underpinnings to
support a motivation to combine the teachings of Lin and Ghosal. See In re
Kahn, 441 F.3d 977, 989 (Fed. Cir. 2006).
Moreover, Appellants’ argument that the Examiner’s motivation of
incorporating the error ratio of prediction calculation is not the same as
Appellants’ reason for using the empirically derived probability of claim 1 is
unpersuasive; Appellants’ argument is unpersuasive because the identity of
purpose does not negate necessarily a suggestion for modifying the prior art
to arrive at the claimed invention. In re Fulton, 391 F.3d 1195, 1202 (Fed.
Cir. 2004) (“Furthermore, as we emphasized in In re Beattie, ‘[a]s long as
some motivation or suggestion to combine the references is provided by the
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Application 13/848,355
prior art taken as a whole, the law does not require that the references be
combined for the reasons contemplated by the inventor.’ 974 F.2d at 1312.
Accordingly, this argument is unpersuasive because the Board need not have
found the combination of Bowerman and Pope to be desirable for the reason
stated in the ’198 application.”).
Concerning Appellants’ argument about Ghosal’s probability, we
disagree with Appellants and agree with the Examiner’s finding. Final
Act. 4; Ans. 7-8. That is, the cited portions of Ghosal relied upon by the
Examiner teach probability based on predictions (Ghosal Tl 117) and
predictions based on historical requests (Ghosal ^ 59); put another way,
probability is based on historical requests indirectly. Final Act. 4.
Moreover, we agree with the Examiner that Ghosal’s discount ratio reflects
the probability that a predicted request would arrive and, thus, must operate
in conjunction with (and in the context of) the predicted arrival rate of
requests; this probability of arrival principally must be rooted in and derived
from the records of previous or historical requests—i.e., determined
empirically. Ans. 7-8.
We do not consider Appellants’ argument that Lin’s estimating fails to
teach a “predictor mechanism” as recited in claims 1 and 8 (Reply Br. 3-5)
because it was not raised properly. Appellants’ argument (see id.) was not
raised in the Appeal Brief and is not responsive to a new finding or
conclusion in the Examiner’s Answer. 37 C.F.R. § 41.41(b)(2). Appellants’
argument that Lin’s estimating fails to teach predicting (Reply Br. 3-5) is
untimely because the Examiner presented the theory based on Lin’s
estimating in the Final Rejection. Final Act. 3. Even if Appellants’
argument were raised properly, which it was not, we agree with the
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Examiner’s finding that Lin’s estimating teaches a “predictor mechanism” as
recited in claims 1 and 8. Id. (citing Lin 21-24). And we also agree with
the Examiner’s finding that Ghosal’s predicting teaches a “predictor
mechanism” as recited in claims 1 and 8. Id. at 4 (citing Ghosal 59, 117).
Lor the reasons stated supra, we sustain the Examiner’s rejection of
independent claim l.2 Because Appellants argue against the rejections of
independent claim 1-14 as a group (see App. Br. 11), we sustain the
Examiner’s rejection of: (1) independent claim 8; and (2) dependent claims
2-7 and 9-14. See 37 C.F.R. § 41.37 (c)(l)(iv).
DECISION
We affirm the Examiner’s decision rejecting claims 1-14 under
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).
AFFIRMED
2 We have decided the Appeal before us. However, in the event of further
prosecution, the Examiner should evaluate whether to give patentable weight
to a conditional limitation (i.e., the two “when” clauses) when one condition
is already satisfied by the prior art. This footnote only pertains to the
“method” of claim 1 in light of our recent Decision in Ex parte Schulhauser,
2016 WL 6277792, No. 2013-007847 (PTAB 2016) (precedential); see also
Cybersettle, Inc. v. Natl Arbitration Forum, Inc., 243 Fed. App’x 603, 607
(Fed. Cir. Jul. 24, 2007) (The Federal Circuit states that “method steps may
be contingent,” and “[i]f the condition for performing a contingent step is
not satisfied, the performance recited by the step need not be carried out in
order for the claimed method to be performed.”
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