Ex Parte Gerovac et al

Patent Trial and Appeal Board

Sep 5, 2014

12170685 (P.T.A.B. Sep. 5, 2014)

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.
12/170,685 07/10/2008 Branko J. Gerovac 0023-0561 1512
44987 7590 09/08/2014
HARRITY & HARRITY, LLP
11350 Random Hills Road
SUITE 600
FAIRFAX, VA 22030
EXAMINER
SAEED, USMAAN
ART UNIT PAPER NUMBER
2169
MAIL DATE DELIVERY MODE
09/08/2014 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 BRANKO J. GEROVAC and DAVID C. CARVER
____________________

Appeal 2012-003977
Application 12/170,6851
Technology Center 2100
____________________

Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.

HUME, 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, 4–12, and 14–28. Appellants have previously
canceled claims 2, 3, and 13. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 According to Appellants, the real party in interest is Juniper Networks,
Inc. App. Br. 3.
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Application 12/170,685

2
STATEMENT OF THE CASE2
The Invention
Appellants' invention relates to systems and methods for data access
in distributed systems. Spec. ¶ 2.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal (emphasis added):
1. A computer-implemented method comprising:
receiving, at a server device, a request for access to a first
item of content, stored on resources of a storage environment
associated with the server device, the request for access being
initiated by a first user;
identifying an existing resource allocation arrangement
associating elements of the first item of content with respective
elements of the resources of the storage environment;
determining whether an admission condition is satisfied
based on a usage and availability of the resources of the storage
environment; and
upon satisfaction of the admission condition, providing,
to the server device, a preferred mapping of a selected copy of
the first item of content, where the copy of the first item of
content is selected based on which element, of the respective
elements of the resources of the storage environment, has a
lowest average load and on a deviation in load across the

2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed
Aug. 2, 2011); Reply Brief ("Reply Br.," filed Dec. 27, 2011); Examiner's
Answer ("Ans.," mailed Oct. 25, 2011); Final Office Action ("Final Act.,"
mailed Mar. 22, 2011); and the original Specification ("Spec.," filed
July 10, 2008).
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Application 12/170,685

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respective elements of the resources of the storage environment;
and
providing the selected copy of the first item of content to
the first user.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Peters et al.
("Peters")
US 6,374,336 B1 Apr. 16, 2002
Menon et al.
("Menon")
US 2005/0262246 A1 Nov. 24, 2005
Rejection on Appeal
Claims 1, 4–12, and 14–28 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Menon and Peters. Ans. 4.
GROUPING OF CLAIMS
Based on Appellants' arguments (App. Br. 11–27), we decide the
appeal of the rejection of all claims on the basis of representative claim 1.
ISSUE
Appellants argue (App. Br. 11–27; Reply Br. 4–15) the Examiner's
rejection of claims 1, 4–12, and 14–28 under 35 U.S.C. § 103(a) as being
obvious over the combination of Menon and Peters is in error. These
contentions present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a method which includes, inter alia, the step of "providing, to the
Appeal 2012-003977
Application 12/170,685

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server device, a preferred mapping of a selected copy of the first item of
content, where the copy of the first item of content is selected based on
which element, of the respective elements of the resources of the storage
environment, has a lowest average load and on a deviation in load across
the respective elements of the resources of the storage environment," as
recited in claim 1 (emphasis added)?
ANALYSIS
We only consider those arguments actually made by Appellants in
reaching this decision, and we do not consider arguments which Appellants
could have made but chose not to make in the Briefs so that any such
arguments are deemed to be waived. 37 C.F.R. § 41.37(c)(1)(vii).
We disagree with Appellants' arguments with respect to claims 1, 4–
12, and 14–28, and we adopt as our own (1) the findings and reasons set
forth by the Examiner in the action from which this appeal is taken and
(2) the reasons and rebuttals set forth by the Examiner in the Examiner's
Answer in response to Appellants' arguments. However, we highlight and
address specific findings and arguments regarding claim 1 for emphasis as
follows.
Appellants contend (App. Br. 12) the combination of Menon and
Peters does not teach or suggest the disputed limitation because the portion
of Menon relied upon by the Examiner (see Menon ¶¶ 41, 93, 94, and 124
and Final Act. 3–4) discloses a load balancing algorithm that balances server
loads based upon the number of service requests per server. Appellants
further contend (App. Br. 13) the load sharing of the prior art does not
account for the "lowest average load and a deviation in load across the
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respective elements," as recited in claim 1. Further in this regard,
Appellants contend paragraph 41 of Menon "does not even mention a
selected copy of an item of content being selected based on which element,
of respective elements of resources of a storage environment, has a lowest
average load and on a deviation in load across the respective elements of the
resources of the storage environment." Id.
Appellants further point out that paragraph 124 of Menon "discloses
that a load balancing algorithm balances a load based on which servers are
receiving more service requests [and c]ontent contained on the servers that
receive more service requests is replicated to servers that have lower loads."
App. Br. 14. Appellants further argue that Menon does not teach or suggest
determining load balancing based upon both average load and on a load
deviation. App. Br. 15–16.
In response, the Examiner finds, and we agree, the cited paragraphs of
Menon, i.e., paragraphs 41, 93, 94, and 124 teach:
[A] selected copy of content is being replicated/provided to the
server device. This replication is being performed based on
which one of the servers in cluster has the lower loads and
deviation being determined by a load balancing component
which decides a server which can best service the request based
on availability and difference in loads on different servers.
Therefore examiner interprets the difference in loads on
different servers as the claimed deviation.
Ans. 12 (emphasis omitted). We agree with the Examiner's findings and
claim construction.
In further support of the Examiner's findings regarding the recited
"deviation in load," we note paragraph 125 of Menon teaches:
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The load-based replication algorithm works by monitoring the
load of each server in the cluster within an observation window,
typically 15 minutes. If the server load exceeds a
predetermined threshold—either absolute or relative to other
clusters in the server—during the observation window (step
1105), a content asset stored in the server's associated storage
device is selected for replication (step 1115).
Menon ¶ 125 (emphasis added). As a matter of claim construction, we
conclude the recited "deviation in load" reads on Menon's teaching of either
absolute or relative server loading compared to other clusters, and that
Menon further teaches that such load deviation is used to select content
assets for replication. Thus, we do not find Appellants' arguments cited
above to be persuasive. See Reply Br. 4–5.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 1, nor do we find error in the Examiner's
resulting legal conclusion of obviousness.
Accordingly, Appellants have not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner's reading of
the contested limitations on the cited prior art. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 1.
As Appellants have not provided truly separate arguments with
respect to independent claims 16 and 28 (see App. Br. 17–27), or dependent
claims 4–12, 14, 15, and 17–27 (see App. Br. 16–17), rejected on the same
basis as claim 1, we similarly sustain the Examiner's rejection of these
claims under 35 U.S.C. § 103(a).
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Application 12/170,685

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REPLY BRIEF
To the extent Appellants advance new arguments in the Reply Brief
(Reply Br. 4–15) not in response to a shift in the Examiner's position in the
Answer, we note that "[a]ny bases for asserting error, whether factual or
legal, that are not raised in the principal brief are waived." Ex parte Borden,
93 USPQ2d 1473, 1474 (BPAI 2010) (informative). Cf. with Optivus Tech.,
Inc. v. Ion Beam Appl'ns. S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) ("[A]n
issue not raised by an appellant in its opening brief . . . is waived.").
CONCLUSION
The Examiner did not err with respect to the obviousness rejection of
claims 1, 4–12, and 14–28 under 35 U.S.C. § 103(a) over the combination of
Menon and Peters, and we sustain the rejection.
DECISION
We affirm the Examiner's decision rejecting claims 1, 4–12, and 14–
28.
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) (2011).
AFFIRMED

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