Ex Parte Gmach et al

Patent Trial and Appeal Board

Oct 19, 2016

13112677 (P.T.A.B. Oct. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/112,677 05/20/2011 Daniel Juergen Gmach
56436 7590 10/21/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82662329 7964
EXAMINER
ERB, NATHAN
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
10/21/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL JUERGEN GMACH,
JEROME ROLIA, and LUDMILA CHERKASOV A
Appeal 2014-005821 1
Application 13/112,677
Technology Center 3600
Before HUBERT C. LORIN, BIBHU R. MOHANTY, and
BRADLEY B. BAY AT, Administrative Patent Judges.
BAY AT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 1, 2, 4-9, 11-16, and 18-20. 3 We have jurisdiction
under 35 U.S.C. § 6(b). We AFFIRM.
1 Our decision references Appellants' Appeal Brief ("App. Br.," filed Oct.
9, 2013), Reply Brief ("Reply Br.," filed Mar. 31, 2014), the Examiner's
Answer ("Ans.," mailed Jan. 31, 2014), and the Final Office Action ("Final
Act.," mailed May 14, 2013).
2 Appellants identify the real party in interest as Hewlett-Packard
Development Company, LP (App. Br. 2).
3 Claims 3, 10, and 17 are objected to as being dependent upon a rejected
base claim (Advisory Action 2 ("Adv. Act." mailed Aug. 6, 2013)); see also
Final Act. 10), and thus not before us on appeal.
Appeal2014-005821
Application 13/112,677
CLAIIvIED TI'IJVENTION
The claimed invention relates to determining a workload cost for
shared computing resources (Spec. ,-i 14 ). Claims 1, 8, and 15 are
independent and recite substantially similar subject matter (App. Br. 18-21 ).
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A method for determining a workload cost, the method
compnsmg:
[ 1] determining a direct consumption of a resource poo 1 by a
workload;
[2] determining a burstiness for the workload and the resource
pool, wherein the burstiness comprises a difference between a
peak consumption of the resource pool by the workload, and the
direct consumption of the resource pool;
[3] determining an unallocated amount of the resource pool;
and
[ 4] determining the workload cost based on the direct
consumption, the burstiness, and the unallocated amount of the
resource pool, wherein determining the workload cost is
performed by a processor.
App. Br. 18, Claims Appendix (bracketed matter added).
REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Hussain et al. US 6,163,700
("Hussain")
Sabry et al. US 6, 728,266 B 1
("Sabry")
Tontiruttananon et al. US 7,107,061 Bl
("Tontiruttananon")
2
Dec. 19, 2000
Apr. 27, 2004
Sept.12,2006
Appeal2014-005821
Application 13/112,677
Garrison et al.
("Garrison")
Madani et al.
("Madani")
US 2010/0036698 Al
US 2011/0296024 Al
The following rejections are before us for review: 4
Feb. 11, 2010
Dec. 1, 2011
Claims 1, 5, 7, 8, 12, 14, 15, and 19 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Madani and Sabry.
Claims 2, 9, and 16 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Madani, Sabry, and Garrison.
Claims 4, 11, and 18 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Madani, Sabry, Tontiruttananon, and Official Notice.
Claims 4, 6, 11, 13, 18, and 20 stand rejected under 35 U.S.C. § 103
as being unpatentable over Madani, Sabry, Hussain, and Official Notice.
ANALYSIS
Independent claim 1
Regarding independent claim 1, the Examiner finds limitation [ 1] in
Madani in paragraphs 14, 19-21, 32, 33, and Table 4 (Final Act. 7-8; see
also Ans. 7-8).
Appellants contend that the Examiner applied "an overly broad
definition of' direct consumption of a resource pool,"' and therefore Madani
does not disclose limitation [l] as recited in the claim (App. Br. 11-13; see
also Reply Br. 3). According to Appellants, paragraphs 19 and 20 of the
4 We note that the Examiner's withdrawal of the rejection of claims 1-7
under 35 U.S.C. § 101 (Ans. 3) is made prior to the Supreme Court decision
in Alice Corp. v. CLS Bank Int'l, 134 S.Ct. 2347 (2014).
3
Appeal2014-005821
Application 13/112,677
Specification require that "direct consumption of a resource pool" to be
interpreted as "the average physical utilization of the pool of resources by a
workload" (App. Br. 11-12; see also Reply Br. 2). Appellants argue that
"Madani clearly does not disclose any sort of 'average physical utilization"'
(App. Br. 12). Appellants also argue that "Fig[ure] 7 ofMadani illustrates
throughput (measured in bytes) over time for a plurality of core switch
ports" and "throughput is a measure of output, rather than resource
consumption" (Reply Br. 3). 5
claim.
Appellants' arguments are not commensurate with the scope of the
[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in applicant's [S]pecification.
In re Aforris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). To read a claim in light
of the Specification, one must interpret limitations explicitly recited in the
claim, without reading limitations from the Specification into the claim, to
thereby narrow the scope of the claim by implicitly adding disclosed
limitations that are not recited in the claim. In re Prater, 415 F.2d 1393,
1404-05 (CCPA 1969).
Nothing in paragraphs 19 and 20 of Appellants' Specification
indicates that Appellants have acted as their own lexicographer by providing
5 We note that Appellants' argument that "throughput is a measure of
output, rather than resource consumption" is presented for the first time in
the Reply Brief without a showing of good cause and is therefore untimely.
Reply Br. 3. Regardless, we address it here for the sake of efficiency.
4
Appeal2014-005821
Application 13/112,677
an express definition for "direct consumption of a resource pool" as recited
in claim 1. For instance, paragraph 19 describes various embodiments and
by way of an example, indicates that "direct resource consumption, ds,w, may
represent the average physical utilization of a server, s, by a workload, w."
However, this feature cited from the Specification by Appellants to further
define limitation [ 1] is not recited in the claim and limitations from the
Specification are not read into the claims. Indeed, nothing in claim 1
excludes shared network resources from the scope of the claimed "resource
pool" because a person of ordinary skill in the art would understand that
throughput, i.e., bandwidth consumption, is a type of resource consumption
(see Madani, paragraph 15, "data and controls will flow ... inherently
taking up bandwidth and thus burdening the network resources").
For the foregoing reasons, we are not persuaded that the Examiner's
interpretation of limitation [ 1] is unreasonably broad.
Additionally, we agree with the Examiner that even under Appellants'
proffered interpretation, Madani discloses limitation [ 1]. Paragraph 21 of
Madani discloses that these metrics can include, inter alia, "CPU load" and
"memory commitment (amount of memory allocated for use of a process)."
The Examiner finds that "a resource in Madani may also be a server" and
"line 544 in Figure 7 of Madani represents a moving average of throughput
consumption, which can be a measure of the utilization of a computer
system" (Ans. 8). Thus, a person of ordinary skill in the art would
understand that the moving average of throughput in Figure 7 is also
representative of average utilization of server resources, including server
CPU and memory resources.
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Appeal2014-005821
Application 13/112,677
The Examiner finds limitation [2] of claim 1 taught by Ivfadani in
Figures 3 and 7, and in paragraphs 39--43 (Final Act. 7-8; see also Ans. 3-
7). In particular, the Examiner finds the claimed "burstiness" in the "delta
variance" depicted in Figure 7 (Final Act. 3, "the deltas thus represent
burstiness").
Appellants contend that moving peak 546 "is not a peak consumption
of a resource pool as recited by the present claims" (App. Br. 9). Appellants
argue that "reference number 546 of Madani is a merely a difference
between cost values, and not a difference between peak consumption and
direct consumption" (id. at 10).
Similar to our discussion above, we find Appellants' contention
equally unpersuasive with respect to the "peak consumption" of limitation
[2] because bandwidth consumption is a kind of resource consumption.
Regarding Appellants' argument that "reference number 546" is "not a
difference between peak consumption and direct consumption," we find that
this argument does not address the Examiner's actual finding that "the deltas
thus represent burstiness" (Ans. 6, 9; see also Final Act. 3). The Examiner
"equates [the claimed] burstiness with the delta(~) value along the graph"
as shown in Figure 7 of Madani, not just moving peak 546 (Ans. 3).
The Examiner finds limitation [3] of claim 1 taught by Sabry in the
Abstract and in column 8, lines 31-63 (Final Act. 7-8; see also Ans. 8-9).
Appellants contend that "Sabry merely finds an amount of resources
available, which is clearly not the 'unallocated resources' as recited by the
present claims" (App. Br. 11 ). According to Appellants, the claimed
"unallocated resources" should be interpreted in light of the Specification at
paragraph 19 as "the difference between 100% use and the peak utilization
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Appeal2014-005821
Application 13/112,677
of the server or resource pool" (id.). Appellants' contention proposes to
incorporate a particular variable - namely as - from paragraph 19 of
Appellants' Specification into claim 1. As discussed above, limitations from
the Specification are not imported into the claims.
Sabry discloses assessing "available resources at each node" in a
traffic route in order to determine a price for network traffic based on traffic
congestion at each node (see Sabry, Abstract). We are not apprised of
Examiner error because Appellants do not explain why it is unreasonable to
interpret the unallocated amount of a resource pool as the amount of
available resources assessed, as taught by Sabry.
Accordingly, we sustain the rejection of rejection of independent
claim 1 as obvious over Madani and Sabry.
Claims 2, 4-9, 11-16, and 18-20
Appellants rely on arguments presented with respect to claim 1 in
contesting the rejection of independent claims 8 and 15 (see App. Br. 9).
Therefore, we sustain the rejection of claims 8 and 15 for the same reasons
as claim 1. We also sustain the rejection of dependent claims 2, 4-7, 9, 11-
14, 16, and 18-20, which are not separately argued except based on their
dependence on each respective independent claim (see id. at 13-16).
DECISION
The Examiner's decision to reject claims 1, 2, 4-9, 11-16, and 18-20
is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a).
AFFIRMED
7