Ex Parte Delapedraja

Patent Trial and Appeal Board

Sep 19, 2012

11498377 (P.T.A.B. Sep. 19, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JAROSLAV ANDREW DELAPEDRAJA
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Appeal 2010-004757
Application 11/498,377
Technology Center 2100
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Before ERIC S. FRAHM, DAVID M. KOHUT, and JASON V. MORGAN,
Administrative Patent Judges.

MORGAN, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1 – 14 and 16 – 21. Claim 15 is canceled. App. Br. 2. We
have jurisdiction under 35 U.S.C. § 6(b)(1).
We affirm-in-part and enter new grounds of rejection.
Invention
The invention is directed to a method comprising accessing a data file
containing performance data for a computer, wherein the data file was
created by a stacked module, identifying a setting of the computer associated
with the performance data, and automatically adjusting the setting based on
the performance data. See Abstract.
Exemplary Claims
1. A method comprising:
accessing a data file containing performance data for a
computer, wherein the data file was created by a stacked
module;
identifying a setting of the computer associated with the
performance data; and
automatically adjusting the setting based on the
performance data.
(Emphases added).
6. A system comprising:
a file system executable on a computer;
an intercept module executable on the computer, the
intercept module coupled to and separate from the file system,
the intercept module configured to intercept accesses to the file
system and to store one or more characteristics of the accesses
in a log file; and
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a tuning component executable on the computer, the
tuning component configured to:
automatically determine a recommended
adjustment to the setting of the file system based on the
stored characteristic.
(Emphases added).
11. A tangible machine readable medium comprising:
code configured to be stacked onto a file system, wherein
the code comprises instructions for:
intercepting one or more transmissions to the file
system; and
storing one or more characteristics of the
transmissions in a log file; and
code configured to access the log file;
code configured to identify a setting of the file system
associated with the one or more characteristics stored in the
log file; and
code configured to adjust the setting based on the one or
more characteristics.
(Emphases added).
16. A tuning system comprising:
a trace module executable on a computer, the trace
module configured to be stacked onto a file system and to
generate a log file containing data intercepted enroute [sic] to
the file system; and
a tuning module executable on a computer, the tuning
module configured to automatically adjust one or more file
system settings based one or more characteristics of the
intercepted data.
(Emphases added).

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Rejections
The Examiner rejects claims 6 and 16 under 35 U.S.C. § 101 as being
directed to non-statutory subject matter. Fin. Rej. 2 – 3; Ans. 4 – 5.
The Examiner rejects claims 6 and 16 under 35 U.S.C. § 112, second
paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which applicant regards as the invention.
Fin. Rej. 3 – 4; Ans. 5 – 6.
The Examiner rejects claims 11 – 14 and 16 – 19 under 35
U.S.C. § 102(b) as being anticipated by Hsu (US 2004/0010473 A1; Jan. 15,
2004). Ans. 6 – 8.
The Examiner rejects claims 1 – 5 under 35 U.S.C. § 103(a) as being
unpatentable over Hsu and Goin (US 2005/0097517 A1; May 5, 2005). Ans.
8 – 10.
The Examiner rejects claims 6 – 10, 20, and 21 under 35 U.S.C.
§ 103(a) as being unpatentable over Hsu and Agarwal (US 7,334,062 B1;
Feb. 19, 2008; filed July 22, 2003). Ans. 10 – 12.
ISSUES
1. Did the Examiner err in concluding that claims 6 and 16 are
directed to non-statutory subject matter?
2. Did the Examiner err in concluding that claims 6 and 16 are
indefinite?
3. Did the Examiner err in finding that Hsu discloses (1) “code
configured to be stacked on a file system” comprising instructions for
“intercepting one or more transmissions to the file system” and for “storing
one or more characteristics of the transmissions in a log file” and (2) code
configured to “identify a setting of the file system associated with the one or
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more characteristics” and to “adjust the setting based on the one or more
characteristics,” as recited in claim 11?
4. Did the Examiner err in finding that Hsu discloses (1) a “trace
module configured to be stacked onto a file system and to generate a log file
containing data intercepted en route to the file system” and (2) a “tuning
module configured to automatically adjust one or more file system settings
based one or more characteristics,” as recited in claim 16?
5. Did the Examiner err in finding that the combination of Hsu and
Goin teaches or suggests “identifying a setting of the computer associated
with the performance data; and automatically adjusting the setting based on
the performance data,” as recited in claim 1?
6. Did the Examiner err in finding that the combination of Hsu and
Agarwal teaches or suggests (1) an “intercept module configured to intercept
accesses to the file system and to store one or more characteristics of the
accesses” and (2) a tuning component configured to “automatically
determine a recommended adjustment to the setting of the file system based
on the stored characteristic,” as recited in claim 6?
ANALYSIS
§§ 101 and 112, second paragraph (claims 6 and 16)
In the Final Rejection, the Examiner’s decision included rejections of
claims 6 and 16 under 35 U.S.C. §§ 101 and 112, second paragraph. Fin Rej.
2 – 4. The Examiner maintains these rejections. See Ans. 3 – 6. In the Notice
of Appeal (Aug. 13, 2009), Appellant appealed to the Board “from the
decision of the examiner.” However, Appellant failed to provide arguments
or evidence in the Appeal Brief addressing the Examiner’s decision to reject
claims 6 and 16 under 35 U.S.C. §§ 101 and 112. Appellant’s arguments in
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the Reply Brief, pp. 5 – 8, are waived as untimely. See Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI 2010) (informative) (“Any bases for asserting
error, whether factual or legal, that are not raised in the principal brief are
waived”).
Accordingly, we pro forma sustain the Examiner’s rejections of
claims 6 and 16 under 35 U.S.C. §§ 101 and 112, second paragraph.
§ 102(b) (claim 11)
Claim 11 recites “code configured to be stacked on a file system”
comprising instructions for “intercepting one or more transmissions to the
file system.” Appellant contends that the Examiner erred, arguing that the
Examiner’s findings fail to show that Hsu discloses code that is stacked
onto, and that intercepts transmissions to, a file system. See App. Br. 4 – 6;
Reply Br. 13 – 15. We agree with the Examiner that Hsu describes these
claimed features. See Ans. 6 and 12 – 14. However, we reach agreement
with the Examiner based on new findings and reasoning.
Hsu illustrates a packet interceptor 90 that, being situated between
network traffic 42 and receiving application 50, is stacked onto and
intercepts transmissions to a receiving application 50. See Hsu Fig.3 and
¶¶ [0054] and [0068]. These applications can include an NFS, which an
artisan of ordinary skill would understand to mean “Network File System.”
See id. at ¶ [0044]; see also S. Shelper et al., Network File System (NFS)
version 4 Protocol, RFC 3530 (April 2003), available at http://www.ietf.org/
rfc/rfc3530.txt. Therefore, Hsu teaches or suggests code configured to be
stacked (a packet interceptor) onto a file system (NFS), wherein the code
comprises instructions for intercepting one or more transmissions to the file
system (network traffic).
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Claim 11 further recites that the code configured to be stacked on a
file system comprises instructions for “storing one or more characteristics of
the transmissions in a log file.” The Examiner finds that Hsu’s capturing of
packets describes this claimed storing. See Ans. 6 and 14; see also Hsu Fig.1
and ¶ [0120]. Appellant contends that the Examiner erred because “packets
are not the same as ‘characteristics’ of a transmission.” App. Br. 6.
However, capture (i.e., storage) of packets (i.e., transmissions) would
provide for storage of the content of the packets, where content is a
characteristic of a packet. Appellant does not identify where in the
Specification or in claim 11 “characteristics of the transmission” is clearly
defined so as to require a narrow interpretation. Therefore, a broad, but
reasonable interpretation of “storing one or more characteristics of the
transmissions in a log file” include capturing (i.e., storing) packets, as
described in Hsu.
Claim 11 further recites code configured to “identify a setting of the
file system associated with the one or more characteristics” and to “adjust
the setting based on the one or more characteristics.” The Examiner finds
that Hsu describes code configured to perform these steps. See Ans. 6 – 7
and 15 – 16. In particular, the Examiner finds that Hsu, by providing output
of a storage parameter that an administrator can use to adjust a user-space
storage buffer size, describes code configured to adjust an identified setting
based on one or more characteristics. See Ans. 16; see also Hsu ¶¶ [0093] –
[0095]. Appellant contends that the Examiner erred in finding that Hsu
describes these features. See App. Br. 7 – 9 and Reply Br. 15 – 17. We agree
with Appellant because Hsu illustrates an individual adjusting, not code
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configured to adjust, an identified settings based on one or more
characteristics.
While we agree with Appellant that Hsu does not describe code for
identifying and adjusting a setting, the Examiner has shown that Agarwal,
which is directed to a technique to monitor application behavior and tune
replication performance, teaches or suggests such code. See Ans. 28 (citing,
e.g., Agarwal col. 8, ll. 17 – 44). Specifically, the Examiner correctly finds
that Agarwal illustrates a system configured to automatically adjust the
configuration of system resources based upon recorded data and statistics.
Id. Moreover, the Examiner correctly finds that it would have been obvious
to an artisan of ordinary skill to combine Agarwal’s technique to monitor
application behavior and tune replication performance with Hsu’s storage
and access teachings and suggestions to provide a method and system which
modifies system resources in response to application behavior. See Ans. 11
(citing, Agarwal col. 1, ll. 9 – 10). This merely represents the combination of
familiar elements according to known methods to produce nothing more
than predictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
416 (2007). Therefore, we find that the combination of Hsu and Agarwal
teaches or suggest identifying and adjusting a setting (automatically
adjusting the configuration of system resources, as taught by Agarwal) of a
file system (NFS, as taught by Hsu) associated with and based on one or
more characteristics (based on recorded data and statistics, as taught by
Agarwal, where captured packets, taught by Hsu, provide for recorded data
and statistics).
Accordingly, we reverse the Examiner’s rejection of claim 11 under
35 U.S.C. § 102(b) as being anticipated by Hsu, however we newly reject
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claim 11 under 35 U.S.C. § 103(a) as being unpatentable over Hsu and
Agarwal. 37 C.F.R. § 41.50(b). We also reverse the Examiner’s 35 U.S.C.
§ 102(b) rejection of dependent claims 12 – 14 and newly reject dependent
claims 12 – 14, which are not argued separately, under 35 U.S.C. § 103(a) as
being unpatentable over Hsu and Agarwal.
§ 102(b) (claim 16)
Claim 16 recites (1) a “trace module configured to be stacked onto a
file system and to generate a log file containing data intercepted en route to
the file system” and (2) a “tuning module configured to automatically adjust
one or more file system settings based one or more characteristics.” These
recitations are similar to the recitations of claim 11 identified above. The
claimed “trace module” of claim 16 is similar to claim 11’s code configured
to be stacked on a file system; the claimed “tuning module” of claim 16 is
similar to claim 11’s code configured to adjust a setting. Appellant’s
arguments with respect to claim 16 are similar to Appellant’s arguments
with respect to claim 11. See App. Br. 9 – 12 and Reply Br. 17 – 19.
For the reasons given above with respect to claim 11, we agree with
Appellant that the Examiner erred in rejecting claim 16 under 35
U.S.C. § 102(b) as being anticipated by Hsu. However, we find that the
combination of Hsu and Agarwal teaches or suggests all of the limitations of
claim 16. Accordingly, we reverse the Examiner’s 35 U.S.C. § 102(b)
rejection of claim 16, and dependent claims 17 – 19. We newly reject claim
16, and dependent claims 17 – 19, which are not argued separately, under 35
U.S.C. § 103(a) as being unpatentable over Hsu and Agarwal.
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§ 103(a) (claim 1)
Claim 1 recites “identifying a setting of the computer associated with
the performance data.” The Examiner finds that Goin, which is directed to a
method and system for adjusting the relative value of system configuration
recommendations, teaches or suggests this identification step. See Ans. 9 and
22 (citing, e.g., Goin ¶ [0022]). Appellant contends that the Examiner erred
because Goin “does not appear to link configuration settings and
performance metrics.” App. Br. 13. However, Goin teaches comparing
performance metrics against performance baselines (i.e., performance data)
and queries a data warehouse for antecedent configuration changes (i.e.,
identifies associated settings of a computer). Therefore, we agree with the
Examiner that Goin teaches or suggests identifying a setting of the computer
associated with the performance data.
Claim 1 further recites “automatically adjusting the setting based on
the performance data.” Appellant contends that neither Hsu nor Goin teaches
or suggests this feature. See App. Br. 14; Reply Br. 20 – 21. For reasons
discussed supra, we agree with Appellant that Hsu does not teach
automatically adjusting a setting. We also agree with Appellant that Goin
merely provides advice and corrective action recommendations to customers
instead of automatically adjusting settings. See Goin ¶ [0024]. However, as
discussed supra with respect to claim 11, Agarwal teaches or suggests
automatically adjusting settings and it would have been obvious to an artisan
of ordinary skill to combine Hsu and Agarwal. Therefore, we find that the
combination of Hsu, Goin, and Agarwal teaches or suggests automatically
adjusting a setting (taught or suggested by Agarwal) based on performance
data (taught or suggested by Hsu and Goin).
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Accordingly we reverse the Examiner’s rejection of claim 1 under 35
U.S.C. § 103(a) as being obvious over Hsu and Goin, however we newly
reject claim 1 under 35 U.S.C. § 103(a) as being unpatentable over Hsu,
Goin, and Agarwal. 37 C.F.R. § 41.50(b). We also reverse the Examiner’s
35 U.S.C. § 103(a) rejection of dependent claims 2 – 5 and newly reject
dependent claims 2 – 5, which are not argued separately, under 35 U.S.C.
§ 103(a) as being unpatentable over Hsu, Goin, and Agarwal.
§ 103(a) (claim 6)
Claim 6 recites an “intercept module configured to intercept accesses
to the file system and to store one or more characteristics of the accesses.”
The Examiner finds that Hsu teaches or suggests the claimed intercept
module. See Ans. 10 and 25. Appellant contends that the Examiner erred in
making this finding. See App. Br. 15 – 17. However, as discussed supra with
respect to claim 11, Hsu teaches or suggests a packet interceptor (i.e., a
module) configured to intercept transmissions to an NFS (i.e., accesses to a
file system) and to store packet content (i.e., characteristics of the accesses).
Therefore, we agree with the Examiner that Hsu teaches or suggests an
intercept module configured to intercept accesses to the file system and to
store one or more characteristics of the accesses. However, we agree with
the Examiner based on new findings and reasoning.
Claim 6 further recites a tuning component configured to
“automatically determine a recommended adjustment to the setting of the
file system based on the stored characteristic.” Appellant contends that
neither Hsu nor Agarwal teaches or suggests a tuning component that
automatically determines a recommended adjustment. See App. Br. 17 – 18;
Reply. Br. 22 – 24. However, the Examiner correctly finds that Agarwal
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illustrates that in one embodiment a replicator component (i.e., a tuning
component) that may be configured to display suggested guidelines for
tuning system resources (i.e., automatically determine recommendations).
See Ans. 28 – 29 (citing Agarwal col. 8, ll. 17 – 44). We agree with the
Examiner that this alternative embodiment in Agarwal, which supports
manual configuration as an alternative to automatic configuration
adjustments, teaches or suggests automatically determining a recommended
adjustment. See Agarwal col. 8, ll. 17 – 28. Therefore, we agree with the
Examiner that the combination of Hsu and Agarwal teaches or suggests a
tuning component configured to automatically determine a recommended
adjustment to the setting (taught or suggested by Agarwal) of the file system
based on the stored characteristic to the setting of the file system based on
the stored characteristic (taught or suggested by Hsu).
Accordingly, we affirm the Examiner’s rejection of claim 6, and
dependent claims 7 – 10, 20, and 21, which are not argued separately, under
35 U.S.C. § 103(a) as being unpatentable over Hsu and Agarwal. However,
because we conclude that these claims are unpatentable based on new
findings and reasoning provided supra, we designate this as a new ground of
rejection. 37 C.F.R. § 41.50(b).
DECISION
The Examiner’s decision to reject claims 6 and 16 under 35 U.S.C.
§ 101 is affirmed.
The Examiner’s decision to reject claims 6 and 16 under 35 U.S.C.
§ 112, second paragraph, is affirmed.
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The Examiner’s decision to reject claims 11 – 14 and 16 – 19 under
35 U.S.C. § 102(b) is reversed.
The Examiner’s decision to reject claims 1 – 10, 20, and 21 under 35
U.S.C. § 103(a) is affirmed based on new grounds of rejection.
We newly reject claims 11 – 14 and 16 – 19 under 35 U.S.C. § 103(a).
37 C.F.R. § 41.50(b) provides that, “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of proceedings (37 C.F.R. § 1.197 (b)) as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new evidence relating to the claims so rejected,
or both, and have the matter reconsidered by the examiner, in which
event the proceeding will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be reheard under
37 C.F.R. § 41.52 by the Board upon the same record. . . .
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-IN-PART;
37 C.F.R. § 41.50(b)

ELD