Ex Parte Harrison et al

Patent Trial and Appeal Board

Sep 12, 2016

13915707 (P.T.A.B. Sep. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/915,707 06/12/2013
46320 7590 09/14/2016
CRGOLAW
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, FL 33434
FIRST NAMED INVENTOR
Jim A. Harrison
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.
GB920120085US2
(780CON)
CONFIRMATION NO.
1014
EXAMINER
MASKULINSKI, MICHAEL C
ART UNIT PAPER NUMBER
2113
NOTIFICATION DATE DELIVERY MODE
09/14/2016 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 JIM A. HARRISON, ROB C. JONES,
PHIL R. LEE, and ANDY WRIGHT
Appeal2015-005756
Application 13/915,707
Technology Center 2100
Before CATHERINE SHIANG, MELISSA A. HAAPALA, and
KAMRAN JIVANI, Administrative Patent Judges.
JIV ANI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's final decision rejecting claims 1-6, which are all the claims
pending in the present application. 2 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify International Business Machines Corporation as the
real party in interest. App. Br. 2.
2 Claims 7-18 are cancelled. App. Br. 8.
Appeal2015-005756
Application 13/915,707
STATEMENT OF THE CASE
The present application relates to transaction server performance
monitoring. Spec. i-f 2.
Claim 1 is illustrative (disputed limitation emphasized):
1. A method for predicting transaction server performance
failure in a transaction processing environment, the method
compnsmg:
receiving a performance metric for a transaction server
during nominal operation of the transaction server in memory of
a computing system;
comparing the performance metric to a benchmark of
performance metrics for the transaction server; and,
responsive to [L 1] the performance metric falling outside
a threshold variance from the benchmark, generating an alert of
a potential impending failure of the transaction server.
The Rejections
Claims 1---6 stand provisionally rejected for non-statutory double
patenting as anticipated by claims 7, 8, and 10-18 of co-pending Application
No. 13/547,674.
Claims 1---6 stand rejected under 35 U.S.C. § 103(a) over Dickerson
(US 8,326,971 B2; Dec. 4, 2012) and Smith (US 6,986,076 Bl; Jan. 10,
2006).
ANALYSIS
Double Patenting
Claims 1---6 stand provisionally rejected for non-statutory double
patenting as anticipated by claims 7, 8, and 10-18 of co-pending Application
No. 13/547,674. Final Act. 3. Appellants fail to address this provisional
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Application 13/915,707
rejection. Arguments not made are considered waived. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2014).
Accordingly, we sustain the Examiner's provisional non-statutory
double patenting rejection of claims 1-6 as anticipated by claims 7, 8, and
10-18 of co-pending Application No. 13/547,674.
Obviousness
Based on Appellants' arguments, we decide the appeal on the basis of
representative claim 1. See 37 C.F.R. § 41.37(c)(l)(iv)(2014). Appellants
contend the Examiner "has simplified the language of the independent
claims and has completely omitted consideration of the claim term
'benchmark."' App. Br. 4 (emphasis omitted). Appellants elaborate, the
Examiner has "misconstrued the critical claim term 'benchmark' to merely
mean a threshold." Reply Br. 3.
We have considered Appellants' argument in the Appeal Brief and
Reply Brief, as well as the Examiner's Answer thereto. We are not
persuaded by Appellants' argument for at least the following reasons.
Initially, as a matter of claim construction, we find Appellants have
not defined explicitly the term benchmark in the claim or the Specification.
We apply the broadest reasonable interpretation of claim terms, consistent
with the specification, as would be understood by one of ordinary skill in the
art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)
(citations omitted). Where, as here, the Specification does not explicitly
define a term, the term should be given its ordinary meaning. See In re
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Application 13/915,707
Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989); In re Morris, 127 F.3d 1048, 1054
(Fed. Cir. 1997).
In support of their argument, Appellants proffer a dictionary definition
of the "benchmark." App. Br. 4--5. However, we observe the MICROSOFT
COMPUTER DICTIONARY defines "benchmark" as:
(A) A standard against which measurements or
comparisons can be made. See also: benchmark program;
benchmark problem.
(B) A procedure, problem, or test that can be used to
compare systems or components to each other or to a standard as
in definition (A).
(C) A recovery file.
MICROSOFT COMPUTER DICTIONARY 96 (5th ed. 2002). Consistent with the
Specification and given this dictionary definition, we decline to limit the
term benchmark to Appellants' proffered construction, but instead construe
the term benchmark to encompass, inter alia, a standard against which
measurements or comparisons can be made.
In light of the above construction, we are not persuaded by
Appellants' argument that the cited references fail to meet limitation L 1.
Rather, we agree with the Examiner that Dickerson's monitoring of
performance data produced in response to execution of a synthetic
transaction (i.e., the performance metric) and the synthetic transaction itself
(i.e., the benchmark) in combination with Smith's use of proactive failover
when a monitored event exceeds a threshold (i.e., the metric falling outside a
threshold variance from the benchmark) at minimum suggests limitation L 1.
Ans. 6-7; Dickerson 6:21-24. More specifically, we agree with the
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Application 13/915,707
Examiner that Smith's synthetic transactions meet the claimed benchmark
(Ans. 6), as we have construed that term.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claims 1---6.
DECISION
We affirm the Examiner's decisions rejecting claims 1---6.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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