Ex Parte Diao et al

Board of Patent Appeals and Interferences

Oct 25, 2011

10648179 (B.P.A.I. Oct. 25, 2011)

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.
10/648,179 08/26/2003 Yixin Diao YOR920030088US1 4426
7590 10/25/2011
Ryan, Mason & Lewis, LLP
90 Forest Avenue
Locust Valley, NY 11560
EXAMINER
OCHOA, JUAN CARLOS
ART UNIT PAPER NUMBER
2123
MAIL DATE DELIVERY MODE
10/25/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte YIXIN DIAO, DENISE Y. DYKO, FRANK N. ESKESEN,
JOSEPH L. HELLERSTEIN, ALEXANDER KELLER,
and LISA F. SPAINHOWER
_____________

Appeal 2009-011214
Application 10/648,179
Technology Center 2100
______________

Before, ALLEN R. MACDONALD, KALYAN K. DESHPANDE, and
DAVID M. KOHUT, Administrative Patent Judges.

KOHUT, 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 1-33. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part the Examiner’s rejection of these claims.

Appeal 2009-011214
Application 10/648,179

2
INVENTION
The invention is directed to a method, article of manufacture, and
apparatus for constructing a resource model by obtaining at least a portion of
resource metrics associated with a resource abstract model. See Spec. 3-5.
Claim 1 is representative of the invention and is reproduced below:
1. A method of constructing a model representative of a
resource for use in managing a service associated with the
resource, comprising the steps of:
associating a resource abstract model with the resource,
wherein the resource abstract model is configured to
automatically determine a set of resource metrics to be used to
construct a model representative of the resource such that a
reduced set of resource metrics is considered; and
constructing the model representative of the resource based
on the reduced set of resource metrics obtained in accordance
with the resource abstract model.

REFERENCE
Bigus et al., “AutoTune: A Generic Agent for Automated
Performance Tuning,” 2000, Practical Application of Intelligent Agents and
Multi-Agent Technology, pgs. 1-20.

REJECTION AT ISSUE
Claims 1-33 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Bigus. Ans. 3-8.
ISSUES
a) Did the Examiner err in finding that Bigus discloses wherein the
resource abstract model is configured to automatically determine a
set of resource metrics to be used to construct a model
representative of the resource such that a reduced set of resource
metrics is considered; and constructing the model representative of
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Application 10/648,179

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the resource based on the reduced set of resource metrics obtained
in accordance with the resource abstract model?
b) Did the Examiner err in finding that Bigus discloses obtaining a
topology of one or more resources used to deliver one or more
services associated with the one or more service level agreements?
ANALYSIS
Appellants select claim 1 as representative of the group comprising
claims 1-5, 7-14, 16-23, 25-29, and 31-33. App. Br. 8. Appellants’ Appeal
Brief begins by describing independent claim 1, followed by a recitation of
the portions of the reference cited by the Examiner, the Appellants’
understanding of the reference, and finally a statement by Appellants that the
reference does not disclose that which is claimed. App. Br. 5-8. In
response, the Examiner lists each of the claim limitations, the Examiner’s
interpretation of the claim limitations, and citations to the Bigus reference
that describe those limitations. Ans. 12-17. Appellants’ statements do not
address these specific findings by the Examiner. Thus, we sustain the
Examiner’s rejection as Appellants’ statements have not identified an error
in the finding supporting the rejection.
Appellants additionally argue in the Reply Brief on pages 3-4 that
Bigus discloses wherein the system model is obtained using a fixed set of
metrics rather than the claimed reduced set of metrics. However, these
arguments raise a new issue not presented before in the Appeal Brief and
will, therefore, not be considered. See 37 C.F.R. § 41.41(b). Even so,
Appellants have not provided evidence or arguments as to why the listed
metrics in Bigus are considered “fixed.” Thus, we sustain the Examiner’s
rejection of claims 1-5, 7-14, 16-23, 25-29, and 31-33.
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Claim 6 recites, “obtaining a topology of one or more resources used
to deliver one or more services associated with the one or more service level
agreements.” Claims 15, 24, and 30 contain similar limitations. Appellants
make similar arguments with respect to claims 6, 15, 24, and 30 as with
claim 1. App. Br. 8. Regarding those arguments, we agree with the
Examiner for the same reasons listed above.
However, Appellants assert an additional argument with respect to
claim 6. Appellants and the Examiner agree that the term “topology” is
specifically defined in the Specification as “the minimal set of resources that
may be used in service delivery.” App. Br. 8, Specification 7, and Ans. 19.
The Examiner finds that Bigus discloses minimizing response times by
“Scheduling different classes of customers on a set of distributed,
heterogenous servers,” which corresponds to a minimal set of resources used
in service delivery. Ans. 19. Appellants argue that the relied upon portion
of Bigus does not disclose a minimal set of resources.
Here, we agree with the Appellants. While Bigus does in fact disclose
minimizing response times by scheduling servers for different classes of
customers, the Examiner has not shown and we do not find that Bigus
necessarily schedules the “minimum” number of servers. Thus, we cannot
sustain the Examiner’s rejection of claims 6, 15, 24, or 30.
CONCLUSION
a) The Examiner did not err in finding that Bigus discloses wherein
the resource abstract model is configured to automatically
determine a set of resource metrics to be used to construct a model
representative of the resource such that a reduced set of resource
metrics is considered; and constructing the model representative of
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the resource based on the reduced set of resource metrics obtained
in accordance with the resource abstract model.
b) The Examiner erred in finding that Bigus discloses obtaining a
topology of one or more resources used to deliver one or more
services associated with the one or more service level agreements.
SUMMARY
The Examiner’s decision to reject claims 1-5, 7-14, 16-23, 25-29, and
31-33 is affirmed. The Examiner’s decision to reject claims 6, 15, 24, and 30
is reversed.
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

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