Ex Parte Darrington et al

Patent Trial and Appeal Board

Feb 16, 2016

12270164 (P.T.A.B. Feb. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/270,164 11113/2008 David L. Darrington
46296 7590 02/18/2016
MARTIN & ASSOCIATES, LLC
P.O. BOX548
CARTHAGE, MO 64836-0548
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
ROC920080l49US1 1670
EXAMINER
CHANG,TOMY
ART UNIT PAPER NUMBER
2456
NOTIFICATION DATE DELIVERY MODE
02/18/2016 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):
derekm@ideaprotect.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID L. DARRINGTON, MATTHEW W. MARKLAND,
PHILIP JAMES SANDERS, and RICHARD MICHAEL SHOK
Appeal2014-004373
Application 12/270,164
Technology Center 2400
Before MAHSHID D. SAADAT, JOHNNY A. KUMAR, and
MATTHEW J. McNEILL, Administrative Patent Judges.
McNEILL, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-20, which are all the claims pending in this application.
We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm-in-part.
1 According to Appellants, the real party in interest is International Business
Machines Corporation. Br. 1.
Appeal2014-004373
Application 12/270,164
STATEMENT OF THE CASE
Introduction
Appellants' present patent application relates to scheduling work in a
multi-node computer system based on checkpoint characteristics for an
application stored in a checkpoint profile. Spec. i-f 2. Claim 1 is illustrative
of the claimed invention and reads as follows:
1. A multi-node computer system comprising:
a plurality of compute nodes that each comprise a
processor and memory;
a network connecting the plurality of compute nodes;
a checkpoint monitor that monitors a plurality of jobs
executing on the computer system during checkpointing and
stores checkpoint characteristics for each job in a plurality of
checkpoint profiles; and
a job scheduler that determines when and where to load a
new job into the plurality of compute nodes depending on the
checkpoint characteristics in the plurality of checkpoint
profiles.
The Examiner's Rejections
Claims 1, 2, 4, 6, 8, 9, 14, 16, and 18 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Saha (US 2010/0011026 Al; Jan. 14, 2010)
and Bansal (US 2009/0300623 Al; Dec. 3, 2009). See Ans. 2-5.
Claims 3, 10, and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Saha, Bansal, and Sahoo (US 2006/0168473 Al; July 27,
2006). See Ans. 4-5.
Claims 5, 11-13, 15, and 19 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Saha, Bansal, and Barsness (US 2009/0043873 Al;
Feb. 12, 2009). See Ans. 6-8.
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Application 12/270,164
Claims 7 and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Saha, Bansal, and Jia (US 2008/0216089 Al; Sep. 4,
2008). See Ans. 8-9.
ANALYSIS
Claims 1, 8, and 16
Appellants argue the Examiner applies impermissible hindsight
reasoning in finding motivation to combine Saha and Bansal to reject claim
1. Br. 6-8. In particular, Appellants argue Saha teaches using checkpoint
execution time to determine checkpoint intervals while Bansal teaches
determining a job start time based on priority constraints, including job
execution time. Br. 6. Appellants contend these teachings result in creating
time intervals in different ways for different purposes. Br. 7. According to
Appellants, an ordinarily skilled artisan would not be motivated to combine
these teachings because placement of a job based on checkpoint execution
time may have the opposite effect of placement of a job based on priority
constraints, as taught by Bansal. Br. 8.
The Examiner provides a comprehensive response to Appellants'
arguments, describing the features of Saha and Bansal (Ans. 10-11 ), which
the ordinary skilled artisan would have combined consistent with the
guidelines stated in KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). The
Examiner further explains that an ordinarily skilled artisan would combine
inputing the statistical data of Saha, such as the checkpoint time intervals,
with the job scheduler of Bansal to use with the other constraints taught by
Bansal. Ans. 11. As motivations for this combination, the Examiner
provides automating the scheduling of future checkpoint jobs and optimizing
checkpoint scheduling in relation to other types of jobs executed in the
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Application 12/270,164
network. Id. With respect to the types of constraints, the Examiner finds
Bansal further teaches manipulation of start time which affects allocation of
resources. Ans. 12 (citing Bansal i-f 91).
We agree with the Examiner's findings regarding the manner in which
an ordinarily skilled artisan would combine the references and the
motivation for such a combination. Although, the Supreme Court stated that
"[a] factfinder should be aware, of course, of the distortion caused by
hindsight bias and must be cautious of arguments reliant upon ex post
reasoning" (KSR, 550 U.S. at 421 ), we are satisfied that the combination of
Saha and Bansal is not based on hindsight bias. In fact, the proposed
combination involves nothing other than requiring the ordinarily skilled
artisan to use common sense in combining prior art elements that perform
their ordinary functions to predictably result in the claimed system.
Therefore, we are also unpersuaded by Appellants' contention that an
ordinarily skilled artisan would be deterred from combining the teachings of
Saha and Bansal merely because the job placement criteria used by Saha and
Bansal may result in different job placement. Br. 8.
Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 1 or claims 8 and 16, which are argued based on the same
reasons presented for claim 1. Br. 9.
Claims 4, 9, and 18
Claim 4 recites "[t]he multi-node computer system of claim 1 further
comprising a user interface that allows a system administrator to edit one or
more checkpoint characteristics in the plurality of checkpoint profiles." The
Examiner rejected claim 4 as unpatentable over the combination of Saha and
Bansal, citing paragraph 13 of Saha. Final Act. 4. Appellants argue the
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Application 12/270,164
Examiner erred in rejecting claim 4 because Saha discloses adjusting the
checkpoint while "the claim limitation is more than just adjusting the
checkpoint." Br. 8-9. The Examiner responds that adjusting checkpoint
jobs affects how long a job takes to execute, which is a checkpoint
characteristic as recited in claim 4. Ans. 13. We agree with the Examiner's
conclusion that Saha's adjusting the checkpoint comprises editing the
"checkpoint characteristics," as recited in claim 4.
Accordingly, we are not persuaded the Examiner erred in rejecting
claim 4 or claims 9 and 18, which are not argued separately. Br. 8-9.
Claims 5, 12, 13, and 19
Claim 5 recites "[t]he multi-node computer system of claim 1 wherein
the job scheduler loads the new job into one or more compute nodes that has
one or more jobs executing with similar checkpoint characteristics as the
checkpoint characteristics for the new job." The Examiner rejected claim 5
as unpatentable over the combination of Saha, Bansal, and Barsness, citing
paragraph 26 of Barsness. Final Act. 6. Appellants argue the Examiner
erred in rejecting claim 5 because Barsness teaches checking the
characteristics of a node, but is silent regarding jobs executing on the node
having similar checkpoint characteristics to the job to be scheduled. Br. 10
(citing Barsness i-f 26). The Examiner responds that Barsness teaches
ensuring that a node has sufficient memory for a job that is loaded onto the
node. Ans. 14-15. The Examiner finds this teaches the limitations of claim
5. Ans. 15.
The cited portion of Barsness is silent as to checkpoint characteristics
of a job to be loaded, instead teaching monitoring the memory usage of the
node itself before loading the job. Barsness i-f 26. The Examiner finds this
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disclosure sufficient to teach or suggest the limitations of claim 5, but does
not explain how monitoring the memory usage of a node is the same as
monitoring checkpoint characteristics of jobs executing on a node.
Accordingly, we agree with Appellants that the Examiner erred in finding
the cited portion of Barsness teaches or suggests claim 5 because checking
memory usage of a node does not constitute loading a new job into a node
that has jobs executing with similar checkpoint characteristics as the new
job. Claims 12 and 19 recite similar limitations to that of claim 5.
Accordingly, we are persuaded of Examiner error in rejecting claims 12 and
19 for the same reasons stated above for claim 5.
Claim 13 recites a similar limitation, but exchanges "similar
checkpoint characteristics" for "different checkpoint characteristics." The
Examiner cited the same portion of Barsness for claim 13 as for claims 5,
12, and 19. We are persuaded of Examiner error in rejecting claim 13 for
the same reasons as claim 5.
Claims 7 and 20
Claim 7 recites "[t]he multi-node computer system of claim 1 wherein
the job scheduler loads the new job based on the checkpoint characteristics
for the job and starts the new job at a time depending on when the next
checkpoint cycle for other jobs on the group of nodes is expected." The
Examiner rejected claim 7 as unpatentable over Saha, Bansal, and Jia. Final
Act. 8-9 (citing Jia i-f 18). Appellants argue Jia teaches coordinating
checkpoint operations using shared memory rather than scheduling jobs
depending on when the next checkpoint cycle for other jobs is expected. Br.
12 (citing Jia i-f 18). The Examiner "interpreted claim 7 to describe
coordinating the performing of a new checkpoint with the performing of the
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next check point to ensure consistency of checkpoints." Ans. 15. Applying
this interpretation, the Examiner finds Jia teaches or suggests claim 7
because Jia prevents corruption of checkpoints by preventing new tasks from
using shared memory when the current checkpointing process is occurring.
Id.
Claim 7 requires the job scheduler to load new jobs based on
checkpoint characteristics and when the next cycle for other jobs is
expected. The cited portion of Jia is silent as to checkpoint characteristics of
jobs being scheduled and the timing of the next checkpoint to be executed by
the node. Accordingly, we are persuaded the Examiner erred in rejecting
claim 7, as well as claim 20, which recites similar limitations.
The Remaining Claims
Appellants argue the patentability of the remaining claims based on
their dependency from their base claim. See Br. 8-10.
DECISION
We affirm the Examiner's rejection of claims 1-4, 6, 8-11, 14, and
16-18.
We reverse the Examiner's rejection of claim 5, 7, 12, 13, 15, 19, and
20.
AFFIRMED-IN-PART
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