11272603 (P.T.A.B. Jun. 24, 2013)

Ex Parte Fung et al

Patent Trial and Appeal BoardJun 24, 2013

11272603 (P.T.A.B. Jun. 24, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/272,603 11/14/2005 Joseph Bing Kong Fung CA920050030US1 4714 75949 7590 06/24/2013 IBM CORPORATION C/O: VanCott Bagley, Cornwall & McCarthy 36 South State Street Suite 1900 Salt Lake City, UT 84111 EXAMINER STRANGE, AARON N ART UNIT PAPER NUMBER 2448 MAIL DATE DELIVERY MODE 06/24/2013 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 PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JOSEPH BING KONG FUNG, DARL ANDREW CRICK, and ROBERT MICHAEL HUNTER DUNN ____________________ Appeal 2011-000223 Application 11/272,603 Technology Center 2400 ____________________ Before ERIC B. CHEN, LYNNE E. PETTIGREW, and IRVIN E. BRANCH, Administrative Patent Judges. BRANCH, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from a Final Rejection of claims 1-21. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2011-000223 Application 11/272,603 2 STATEMENT OF CASE Introduction The claims are directed to workload management on a website in which web objects may be disabled when the workload on a website exceeds a defined threshold for specific server performance criteria. Abs. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A system for providing automatic website workload management for a website comprising at least one server, comprising: a processor in communication with said at least one server, wherein said processor is configured to execute software causing said processor to implement: at least one reporting module for collecting performance criteria of the at least one server associated with the website; a listener module for receiving the collected performance criteria; and a rules module for managing rules defining thresholds for selectively enabling and otherwise disabling at least one interactive web object of the website based on the received performance criteria from the listener module to manage workload on the website. References The prior art relied upon by the Examiner in rejecting the claims on appeal is: Huang US 6,959,319 B1 Oct. 25, 2005 Hwang US 2006/0085420 A1 Apr. 20, 2006 Rejections The Examiner rejects claims 1-21 under 35 U.S.C. §103(a) as being unpatentable over Huang and Hwang. Ans. 4-11. Appeal 2011-000223 Application 11/272,603 3 ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments in the Appeal Brief. Only those arguments actually made by Appellants have been considered in this decision. Arguments that Appellants did not make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii). Appellants contend that the Examiner erred in rejecting claim 1 because the references do not teach the rules module of claim 1. Br. 11-15. Appellants’ arguments present us with the issue of whether the Examiner erred in finding that the combination of Huang and Hwang teaches “a rules module for managing rules defining thresholds for selectively enabling and otherwise disabling at least one interactive web object of the website based on the received performance criteria from the listener module to manage workload on the website.” 35 U.S.C. § 103 Rejection Claims 8 and 15 recite similar subject matter to claim 1. Appellants argue claims 8 and 15 under separate headings from claim 1 (Br. 15-18) but on the same basis. Appellants do not separately argue the independent claims. Accordingly, we address all claims as a group using claim 1 as representative. For the disputed limitation, the Examiner cites, inter alia, Huang, column 2, lines 15-30 and 35-43, which describes selectively displaying classes of website objects based on user-specified threshold values for accessing certain websites. Ans. 4. The Examiner also cites Hwang, Appeal 2011-000223 Application 11/272,603 4 paragraph 23, which describes client and server agents collecting performance data used to diagnose problems experienced in viewing web pages. Id. at 5-6, 12. The Examiner concludes that, when combined, these references teach “a rules module for managing rules defining thresholds for selectively enabling and otherwise disabling at least one interactive web object of the website based on the received performance criteria from the listener module to manage workload on the website.” Id. at 5-6. Appellants’ Contentions Appellants contend that while Huang teaches “managing the selective enabling and disabling of interactive web objects based on the preferences and/or browsing history of an individual user,” this falls short of describing managing rules based on received performance criteria of a server associated with the website. Br. 12. Appellants further argue that Huang also does not teach that the thresholds are adjusted to manage workload on the website. Id. Regarding Hwang, Appellants argue that, although Hwang describes performance threshold violations that are set and monitored, it does not describe “that the performance thresholds themselves are based on received performance criteria of a server.” Br. 13. Appellants conclude that the rejection is erroneous because it fails to satisfy one of the Graham factors, namely that the scope and content of the prior art, as evidenced by Huang and Hwang, has not been shown to include the “rules module” element of claim 1. Id. at 14-15. We are not persuaded by Appellants’ arguments that the Examiner erred in concluding that the claimed rules module would have been obvious in view of the combined teachings of Huang and Hwang. The claimed Appeal 2011-000223 Application 11/272,603 5 “rules module,” in view of Huang and Hwang, is no more than a simple arrangement of old elements, with each performing the same function it had been known to perform, yielding no more than one would expect from such an arrangement. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Appellants have not presented persuasive evidence that incorporating web site performance threshold monitoring of Hwang into Huang’s user-defined web object enablement/disablement module to make the rules module would have been “uniquely challenging or difficult for one of ordinary skill in the art” or “represented an unobvious step over the prior art.” See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418-19). Accordingly, we sustain this rejection. CONCLUSIONS On the record before us, we conclude that, because the combination of Huang and Hwang teaches the “rules module,” the Examiner has not erred in rejecting claim 1 under 35 U.S.C. §103 and claims 2-21 on similar grounds. We sustain the rejection of claims 1-21. DECISION For the above reasons, the Examiner’s rejection of claims 1-21 is affirmed. 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). Appeal 2011-000223 Application 11/272,603 6 AFFIRMED ke