Ex Parte Doyle et al

Patent Trial and Appeal Board

Jun 27, 2016

12828281 (P.T.A.B. Jun. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/828,281 06/30/2010
46320 7590 06/29/2016
CRGOLAW
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, FL 33434
FIRST NAMED INVENTOR
Ronald P. Doyle
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.
RSW920100002US 1 6531
EXAMINER
HOANG, PHUONG N
ART UNIT PAPER NUMBER
2194
NOTIFICATION DATE DELIVERY MODE
06/29/2016 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):
docketing@crgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD P. DOYLE and DAVID L. KAMINSKY
Appeal2014-009494
Application 12/828,281
Technology Center 2100
Before DEBRA K. STEPHENS, JASON V. MORGAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a Non-Final Rejection
of claims 5-11. 1 We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Claims 1--4 have been cancelled.
Appeal2014-009494
Application 12/828,281
STATEMENT OF THE INVENTION
According to Appellants, the claims are directed to a holistic task
scheduling for distributed computing (Abstract). Claim 5, reproduced
below, is representative of the claimed subject matter:
5. A task scheduling data processing system comprising:
a computer with at least one processor and memory and
coupled to a distributed computing system of different nodes
over a computer communications network;
a parallel processing module configured to perform
parallel processing of a provided problem in the different nodes;
and,
a task scheduler executing in the computer, the task
scheduler comprising program code that when executed in the
memory of the computer is enabled to select first and second
tasks associated with respectively different first and second jobs
scheduled for processing within a node of the distributed
computing system by the task scheduler, to compare an estimated
time to complete the first and second jobs, and to schedule the
first task for processing in the node when the estimated time to
complete the second job exceeds the estimated time to complete
the first job, but otherwise scheduling the second task for
processing in the node when the estimated time to complete the
first job exceeds the estimated time to complete the second job.
2
Appeal2014-009494
Application 12/828,281
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Borkenhagen
Doyle
Zhou
US 6,212,544 Bl
US 8,595,735 B2
US 2006/0265712 Al
Apr. 3, 2001
Nov. 26, 2013
Nov. 23, 2006
Maleeha Kiran, et al., Execution Time Prediction of Imperative Paradigm
Tasks for Grid Scheduling Optimization, International Journal of Computer
Science and Network Security Vol. 9, No. 2, 155 (Feb 2009) ("Kiran")
REJECTIONS2
Claims 8-11 stand rejected under 35 U.S.C. §101 as being directed to
non-statutory subject matter (Non-Final Act. 2).
Claims 5-10 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Zhou, Kiran, and Appellants' Admitted Prior Art (AAPA)
(Final Act. 7-11).
Claim 11 stands rejected under 35 U.S.C. §103(a) as being
unpatentable over Zhou, Kiran, APA, and Borkenhagen (Final Act. 11-12).
We have only considered those arguments that Appellants actually
raised in the Briefs. Arguments Appellants could have made but chose not
to make in the Briefs have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2012).
2 The non-statutory obviousness-type double patenting of claims 5 and 8 has
been withdrawn (Ans. 2).
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Application 12/828,281
ISSUES
35 U.S.C. § 1 OJ: Claims 8-11
Appellants argue their invention, as recited in claims 8-11, is directed
to statutory subject matter (App. Br. 4--9). The issue presented by the
arguments is
Issue 1: Has the Examiner erred in concluding the invention, as
recited in claim 8, is directed to non-statutory subject matter?
ANALYSIS
Appellants argue, according to their Specification, a computer
readable medium may be a computer readable signal medium or a computer
readable storage medium (App. Br. 5; Spec. i-f 24). Thus, Appellants argue,
because a storage medium is distinguished from a signal medium, their
Specification expressly excludes a carrier wave from a storage medium
(App. Br. 6; Spec. i-fi-124--25).
We are not persuaded by Appellants' arguments. Appellants'
Specification states "[a] computer readable storage medium may be, for
example, but not limited to, an electronic, ... " (Spec. i-f 24) (emphasis
added). Thus, Appellants have not explicitly defined a computer readable
storage medium, but instead, have described the term in an open-ended
manner. Appellants' further citation to paragraph 25 is also not persuasive.
Again, Appellants have not explicitly defined the term, but instead, provided
open-ended examples. Specifically, this paragraph recites "[a] computer
readable signal medium may include a propagated data signal ... (Spec.
i-f 25) (emphasis added). The paragraph continues that "[a] computer
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Application 12/828,281
readable signal medium may be any computer readable medium that is not a
computer readable storage medium (id.). Thus, with the undefined
boundaries of the two terms, we are unpersuaded the Examiner's
interpretation is not broad, but reasonable, in light of the Specification. It
follows, we are not persuaded the Specification precludes the computer
readable storage medium from including a transitory signal.
Furthermore, as noted by the Examiner, several examples of computer
readable storage media provided by the Specification are signal media such
as "infrared" (Ans. 9; see also Spec. i-f 24). Appellants do not persuasively
rebut the Examiner's finding that these are directed to signals, rather than
non-transitory storage (Ans. 9). However, these examples blur the purported
distinction between storage and signal. Thus, an artisan of ordinary skill
would not understand the Specification as making a clear distinction
between computer readable storage and computer readable signal media.
Appellants are not precluded from amending these claims to
overcome this rejection. Guidance on this point is provided in U.S. Patent &
Trademark Office, Subject Matter Eligibility of Computer Readable Media,
1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010) ("A claim drawn to such a
computer readable medium that covers both transitory and non-transitory
embodiments may be amended to narrow the claim to cover only statutory
embodiments to avoid a rejection under 35 U.S.C. § 101 by adding the
limitation 'non-transitory' to the claim."). See also U.S. Patent &
Trademark Office, Evaluating Subject Matter Eligibility Under 35 USC
§ 101 (August 2012 Update) (pp. 11-14), available at http://www.uspto.gov/
patents/law/exam/I 0l_training_aug2012.pdf (noting that while the recitation
"non-transitory" is a viable option for overcoming the presumption that
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Appeal2014-009494
Application 12/828,281
those media encompass signals or carrier waves, merely indicating that such
media are "physical" or tangible" will not overcome such presumption).
Accordingly, we are not persuaded the invention, as recited in claim 8,
is directed to statutory subject matter. Dependent claims 9-11, not
separately argued, fall with independent claim 8. Therefore, we sustain the
rejection of claims 8-11under35 U.S.C. § 101 as being directed to non-
statutory subject matter.
35 U.S.C. § 103(a): Claims 5-10
Appellants assert their invention is not obvious over Zhou, Kiran, and
AAP A (App. Br. 9-13). The issue presented by the arguments is:
Issue 2: Has the Examiner erred in finding the combination of Zhou,
Kiran, and AAP A teaches or suggests the invention as recited in independent
claims 5 and 8?
ANALYSIS
Appellants assert Zhou teaches processing a list of tasks (App. Br.
12). According to Appellants, in Zhou's Figure 7,
(id.).
[ s Jo long as the list of tasks is not empty, "subtasks" can be
selected from an XSLT Subtask List. However, nothing in
Figure 7 indicates that the "subtasks" in the XSL T Subtask List
are tasks of a job---compared by the Examiner to the tasks in the
task lists. Rather the subtasks of the XSL T Subtask List are
independent of the tasks in the task list.
We are not persuaded by Appellants' argument. The Examiner relies
on the combination of Zhou and Kiran to teach the invention as recited;
however, Appellants are arguing the references individually. Specifically,
the Examiner relies on Zhou as teaching the subtasks Gobs) (Ans. 11; Non-
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Application 12/828,281
Final Act. 9) and Kiran as teaching a task is associated with a different job
(Non-Final Act. 9). We find Kiran teaches a program Gob) is comprised of
se gm en ts (tasks) (Kiran, §Summary).
We further note Appellants' Specification does not explicitly define
the terms "job" or "task." Thus, nothing in the claim language or
Specification precludes a ')ob" from comprising one "task."
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Zhou, Kiran, and AAP A teaches or suggests the limitations
as recited in independent claims 5 and 8 and dependent claims 6, 7, 9, and
10, not separately argued. Therefore, we sustain the rejection of claims 5-10
under 35 U.S.C. § 103(a) for obviousness over Zhou, Kiran, and AAPA.
35 U.S.C. § 103(a): Claim 11
Appellants do not separately argue claim 11, instead relying on the
reasons argued with respect to claims 5-10 (App. Br. 13). For the reasons
set forth above, we sustain the rejection of claim 11 under
35 U.S.C. § 103(a) for obviousness over Zhou, Kiran, AAPA, and
Borkenhagen.
DECISION
The Examiner's rejection of claims 8-11under35 U.S.C. § 101 as
being directed to non-statutory subject matter is affirmed.
The Examiner's rejection of claims 5-10 under 35 U.S.C. § 103(a) as
being unpatentable over Zhou, Kiran, and AAP A is affirmed.
The Examiner's rejection of claim 11 under 35 U.S.C. § 103(a) as
being unpatentable over Zhou, Kiran, AAP A, and Borkenhagen is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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