Ex Parte Gupta et al

Patent Trial and Appeal Board

Oct 14, 2014

12250881 (P.T.A.B. Oct. 14, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CHETAN KUMAR GUPTA, SONG WANG,
and ABHAY MEHTA
____________

Appeal 2012-005342
Application 12/250,881
Technology Center 2100
____________

Before JEAN R. HOMERE, CARL W. WHITEHEAD JR., and
BETH Z. SHAW, Administrative Patent Judges.

SHAW, Administrative Patent Judge.

DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1–9 and 11–15. Claim 10 is cancelled
(App. Br. 3). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

INVENTION
The invention relates to query scheduling. (See Spec. ¶ 10.)

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Claims 1, 7, and 8 are illustrative and reproduced below:
1. A method for scheduling queries, the method comprising:
maintaining a queue of queries, the queue identifying an
order for executing the queries;
receiving a new query;
determining, by a processor, a position in the queue to
insert the new query based on a stretch metric for the queries in
the queue, wherein the stretch metric for each of the queries is
S = (C - a)/p, wherein C is an end time of the query, a is an
arrival time of the query, and p is a processing time of the
query;
inserting the new query in the determined position in the
queue; and
selecting a query from the queue to execute based on the
order for executing the queries identified from the queue.

7. The method of claim 6, wherein a longest a query in the
queue has to wait before its weight becomes 1 is:
l/p + Cw = 1, where
w = (1/C)(1-1/p), and
p is the processing time, C is a constant and w is the wait
time.

8. The method of claim 3, wherein a weight function used
to determine the weights of the queries is from a weight family
characterized by:
f= C1/p + C2wk
where, C1 and C2 > 0, and k, C1 and C2 are constants, p is the
processing time of the query, and w is the wait time.

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REJECTIONS
The Examiner rejected claims 1–9 and 11–15 under 35 U.S.C.
§ 103(a) as unpatentable over Agrawal et al. (US 2009/0216718 A1, pub.
Aug. 27, 2009) (“Agrawal”) and Rosengard (US 7,596,560 B2, issued Sept.
29, 2009) (Ans. 4).
ISSUES
Appellants’ contentions present us with the following issues:
Did the Examiner err in finding the combination of Agrawal and
Rosengard teaches or suggests that a new query is positioned into a queue
based on a stretch metric for the queries, wherein the stretch metric for each
query is S = (C - a)/p, wherein C is an end time of the query, a is an arrival
time of the query, and p is a processing time of the query, as recited in claim
1?
Did the Examiner err in finding the combination of Agrawal and
Rosengard teaches or suggests wherein a longest a query in the queue has to
wait before its weight becomes 1 is: l/p + Cw = 1, where w = (1/C)(1-1/p),
and p is the processing time, C is a constant and w is the wait time, as recited
in claim 7, or a weight function used to determine the weights of the queries
is from a weight family characterized by: f= C1/p + C2wk where C1 and C2 >
0, and k, C1 and C2 are constants, p is the processing time of the query, and
w is the wait time, as recited in claim 8?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’
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contentions that the Examiner erred in finding the combination of Agrawal
and Rosengard teaches or suggests the disputed limitations recited in claim 1
or the limitations of dependent claims 7 and 8.
In particular, Appellants argue Agrawal merely discloses the query
scheduler estimates the time duration that a query waits in the queue to be
executed or perceived wait time (PWT), and the query scheduler of Agrawal
does not determine a position in the queue to insert a new query based on a
stretch metric (App. Br. 10–11).
In response, the Examiner finds Agrawal describes a query scheduler
that is able to assign a query to a queue of queries based on calculations
performed by a query scheduler (Ans. 16, citing Agrawal Abstract and ¶ 19),
which teaches positioning a new query in a queue (Ans. 18). The Examiner
also finds Agrawal describes calculating the time to execute a query, where
the total time to execute queries is represented as TB. (Ans. 17, citing
Agrawal ¶ 58.) Moreover, the Examiner finds ti represents the time to
complete a query and Ti represents the execution time of a query, with
Agrawal disclosing a formula that calculates the completion time of a query
divided by the execution time of a query that is utilized in calculating a
perceived wait time of a query. (Ans. 17, citing Agrawal ¶ 61). The
Examiner concludes Agrawal’s formula teaches or suggests the stretch
metric recited in claim 1. We agree with the Examiner because Agrawal
teaches ti / Ti, which is the time to complete a query divided by the execution
time of a query (see Agrawal ¶ 61), and is functionally equivalent to the
stretch metric disclosed in claim 1, which describes the difference between
and end time of a query and an arrival time of the query, divided by a
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processing time of the query. Therefore, we sustain the Examiner’s rejection
of claim 1.
Regarding claims 7 and 8, the Examiner finds Agrawal discloses a
query scheduler that utilizes completion time for queries,
processing/execution time for queries, and a perceived wait time for queries,
as well as a calculation of a maximum perceived wait time that utilizes a
constant. (Ans. 19–20, citing ¶¶ 80–81.) The Examiner concludes Agrawal
teaches calculating a maximum wait time of a batch of query based on a
calculation utilizing processing time, a constant, and an average wait time,
similar to the limitations disclosed in dependent claims 7 and 8 (Ans. 20).
While the Examiner bears the initial burden of establishing an initial
case of unpatentability, once that burden has been met, the burden of coming
forward with evidence or arguments demonstrating error in the Examiner’s
rejection shifts to the Appellant. In re Oetiker, 977 F.2d 1443, 1445 (Fed.
Cir. 1992). Mere lawyer’s arguments and conclusory statements that are
unsupported by factual evidence are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
Appellants argue Agrawal discloses equations that are not the same as
those recited in claims 7 and 8 (App. Br. 14). Appellants state none of the
equations for calculating the perceived wait time in Agrawal are equivalent
to the claimed equations (App. Br. 14).
Appellants merely reiterate what the disputed claim limitations recite
and make general allegations as to the teachings of Agrawal. See App. Br.
14; Reply Br. 6. Merely reciting the language of the claims and asserting
that the cited prior art reference does not teach or suggest each claim
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limitation is insufficient. See 37 C.F.R. § 41.37(c)(vii) (“A statement which
merely points out what a claim recites will not be considered an argument
for separate patentability of the claim.”); see also In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.”).
Therefore, Appellants’ conclusory statements on page 14 of the
Appeal Brief and page 6 of the Reply Brief do not persuade us of error, and
we sustain the Examiner’s rejection of claims 7 and 8.
Because Appellants have not presented separate patentability
arguments or have reiterated substantially the same arguments as those
previously discussed for patentability of claim 1 above, claims 2–6, 9, and
11–15 fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv).

DECISION
We affirm the rejection of claims 1–9 and 11–15.
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

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