Ex Parte Kline

Board of Patent Appeals and Interferences

Jan 25, 2011

10635397 (B.P.A.I. Jan. 25, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P Alexandria, 0 Box 1450 Virginia 22313- 1450
www uspto gov
26502 7590 0 1/27/20 11
IBM CORPORATION
APPLICATION NO.
EXAMINER
IPLAW SHCB/40-3 KARDOS, NEIL R
101635,397 08/06/2003 Christopher N. Kline END92003005 WS 1 1206
FILING DATE
1701 NORTH STREET
ENDICOTT, NY 13760
I ARTUNIT I PAPERNUMBER I
FIRST NAMED INVENTOR
Please find below andlor attached an Office communication concerning this application or proceeding.
ATTORNEY DOCKET NO.
NOTIFICATION DATE
The time period for reply, if any, is set in the attached communication.
CONFIRMATION NO.
DELIVERY MODE
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
01/27/2011 ELECTRONIC
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
Ex parte CHRISTOPHER N. KLINE
Appeal 2009-012273
Application 101635,397
Technology Center 3600
Before HUBERT C. LORIN, ANTON W. FETTING, and
BIBHU R. MOHANTY, Administrative Patent Judges.
FETTING, Administrative Patent Judge.
The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. 5 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. 5 41.52, begins to run from the "MAIL DATE"
(paper delivery mode) or the "NOTIFICATION DATE" (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-012273
Application 101635,397
Christopher N. Kline (Appellant) seeks review under 35 U.S.C. 5 134
(2002) of a final rejection of claims 1, 5-8, 11-14, 18-21, 24-26, and 28, the
only claims pending in the application on appeal. We have jurisdiction over
the appeal pursuant to 35 U.S.C. 5 6(b) (2002).
The Appellant invented a way of determining when to run maintenance
operations based on predetermined system criteria (Specification 4:s-9).
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below [bracketed matter and some
paragraphing added].
1. A method for automatically scheduling performance of
maintenance tasks to maintain at least one server in a
distributed computing environment, comprising:
[I] providing a distributed computing environment with a
plurality of servers, including said at least one server;
[2] monitoring server conditions on said at least one server
to dynamically detect at least one predetermined criterion
for performing at least one maintenance task
on said at least one server
2 Our decision will make reference to the Appellant's Appeal Brief ("App.
Br.," filed December 9, 2008) and the Examiner's Answer ("Ans.," mailed
March 10, 2009).
Appeal 2009-012273
Application 101635,397
in said distributed computing environment; and
[3] automatically performing said at least one maintenance task
in response to said monitoring step,
wherein said at least one predetermined criterion
comprises
low disk space on said at least one server, and
wherein said at least one maintenance task comprises
reducing a size of log files
stored on said at least one server
in said distributed computing environment.
The Examiner relies upon the following prior art:
McAfee, McAfee Utilities: User's Guide Version 4.0 (Jan. 200 1)
(Mc Afee)
Description of the Low Disk Space Notification in Windows XP
http://support.microsoft.com/kb/285 107 (Hereafter, Disk Space)
How to Automate the Disk Cleanup Tool in Windows XP,
http://support.microsoft.com/kb/3 15246 (last visited Jan.4, 2008)
(Hereafter, Disk Cleanup)
How to Use the Backup Utility to Back Up Files and Folders in Windows
XP Home Edition, http ://support.microsoft.corn/kb/ 320820len-us (last
visited Jan.4, 2008) (Hereafter, Backup)
Disk Defragmenter Error Codes, http://www.aumha.org/a/
defragerr.php, (last visited Jan.4, 2008) (Hereafter, Error Codes)
Claims 1, 5-6, 8, 12-14, 18, 19, 21, 25, 26, and 28 stand rejected under
35 U.S.C. 5 103(a) as unpatentable over McAfee, Disk Space, and Disk
Cleanup.
Claims 7 and 20 stand rejected under 35 U.S.C. 5 103(a) as unpatentable
over McAfee, Disk Space, Disk Cleanup, and Backup.
Appeal 2009-012273
Application 101635,397
Claims 11 and 24 stand rejected under 35 U.S.C. 5 103(a) as
unpatentable over McAfee, Disk Space, Disk Cleanup, and Error Codes.
ISSUES
The issue of obviousness turns primarily on whether it was predictable to
operate various housekeeping utilities for disk space conservation and
backup on a server as well as on stand alone or client computers. The issue
also turns on predictability of automating a known process and whether file
compression reduces the size of log files.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to the Prior Art
McAfee
01. McAfee is a software utilities user guide. McAfee Cover.
02. McAfee deletes and compresses those types of files one
specifies. McAfee 33.
03. McAfee's utilities can be placed on a server in a client server
network environment. McAfee iii.
Disk Space
04. Disk Space is directed to a Microsoft Disk Cleanup Wizard
utility that starts automatically when a user responds to an
automatically created Low Disk Space prompt when disk space
runs low. Disk Space 1.
Appeal 2009-012273
Application 101635,397
Disk Cleanup
05. Disk Cleanup is directed to explaining the settings for
Microsoft Disk Cleanup Wizard. Disk Cleanup 1-3.
06. Among the options is that of compressing files to reduce size.
Cleanup 2.
Backup
07. Backup is directed to a Microsoft backup utility that copies data
files and system state settings. Backup 1-2.
08. You can only back up the System State data on a local
computer. You cannot back up the System State data on a remote
computer. That is, although the resulting backup data is stored
elsewhere, the system state data that is backed up is only that of
the local machine. Microsoft's particular backup utility will not
retrieve the system state settings from a remote machine. Backup
3.
ANALYSIS
Claims 1, 5-6, 8, 12-14, 18, 19, 21, 25, 26, and 28 rejected under 35 U.S.C.
§ 103(a) as unpatentable over McAfee, Disk Space, and Disk Cleanup.
Claim 1 is representative. A server in a distributed computing
environment is monitored for low disk space, and when this criterion is met,
the size of log files is automatically reduced. The Appellant argues that the
art fails to describe the server in a distributed computing environment,
automated execution, and reducing the size of log files. Appeal Br. 8-15;
Reply Br. 1-4.
Appeal 2009-012273
Application 101635,397
The Examiner found that McAfee provided the distributed computing
environment and monitoring with maintenance tasks; and Disk Space
described a low disk space monitor as a specific type of monitoring that was
known to be required; and that Disk Cleanup described reducing file sizes
generally, which would have included log files. Ans. 4-6.
McAfee explicitly recites loading its software on a server in a client-
server network environment. FF 03. The Appellant appears to be arguing
that this is for storage only and that the software is actually executed on
clients. As the cited portion of McAfee is a licensing provision rather than
operating instructions, McAfee is silent as to whether execution occurs on
the server. But as a server is simply another computer of the type that
McAfee monitors, it was at least predictable to one of ordinary skill to run
utilities such as those in McAfee on such a server.
The Appellant does not contend otherwise, but merely argue the scope of
the licensing terms. The Examiner applied McAfee only to show that
monitoring software was known to be placed on a server in a distributed
computing environment. One of ordinary skill would have operated the
software to monitor any computer that exhibited the need for such utilities.
A server clearly requires disk cleanup by deleting and compressing files (FF
02) given the amount of data traffic that creates temporary storage files.
The Appellant also argues that the Examiner misstated as fact that
McAfee describes a server in a distributed computing environment. Appeal
Br. 16. McAfee's referral to a server that contains a program that is run on a
client computer (FF 03) describes a server in a client-server environment. A
Appeal 2009-012273
Application 101635,397
client-server relationship is in fact a distributed computing environment, as
the operation is shared, or distributed, between the client and the server.
As to automation, Microsoft's cleanup wizard starts automatically when
a user responds to, an automatically created, a Low Disk Space prompt when
disk space runs low. FF 04. Thus the cleanup wizard is one that was
"automatically performing said at least one maintenance task in response to
said monitoring step." The claim makes no further limitation regarding the
nature of the automation, so even the automated triggering of the cleanup as
in the cleanup wizard is within the scope of the claim. In any event, as the
Examiner found, it is obvious to automate a known manual operation where
one of ordinary skill knew how to provide such automation. See Leapfrog
Enterprises Znc. v. Fisher-Price Znc., 485 F.3d 1157, 1163 (Fed. Cir. 2007).
As to reducing log files, both McAfee and the cleanup wizard compress
files (FF 02 and 06) to reduce file size and log files being text files
invariably exhibit size reduction under such compression. The claim does
not restrict the scope to only log files, so general compression as in McAfee
and the cleanup wizard is within the scope of the claim, as servers invariably
produce log files documenting transaction history.
The remaining claims are argued either by referring to the arguments in
support of claim 1 or by essentially repeating those arguments.
Claims 7 and 20 rejected under 35 U.S. C. § 103(a) as unpatentable over
McAfee, Disk Space, Disk Cleanup, and Backup.
These claims recite automatically saving configurations and
authorizations for instances of applications running on said at least one
server in said distributed computing environment. The Appellant argues that
Appeal 2009-012273
Application 101635,397
Backup only saves system state settings for the same computer that backup
is performed and so does not save configurations for instances of
applications running on the server. We find this argument to be a corollary
to the argument with claim 1 regarding the server. This argument implies
the backup utility is not running on a server, since a backup utility running
on a server would be running on the same machine as the instances of
applications running on that same server. As we found in claim 1, supra, it
was predictable to run such utilities on a server, as a server produces the
same or greater risk of disk degradation as any other computer.
Claims 11 and 24 rejected under 35 U.S.C. § 103(a) as unpatentable over
McAfee, Disk Space, Disk Cleanup, and Error Codes .
These claims recite automatically alerting an administrator when a
maintenance task performed on said at least one server in said distributed
computing environment fails. The Appellant repeats the argument regarding
a server and distributed computing environment from claim 1, which we find
unpersuasive for the same reasons as found supra.
CONCLUSIONS OF LAW
Rejecting claims 1, 5-6, 8, 12-14, 18, 19, 21, 25, 26, and 28 under 35
U.S.C. 5 103(a) as unpatentable over McAfee, Disk Space, and Disk
Cleanup is not in error.
Rejecting claims 7 and 20 under 35 U.S.C. 5 103(a) as unpatentable over
McAfee, Disk Space, Disk Cleanup, and Backup is not in error.
Rejecting claims 1 1 and 24 under 35 U.S.C. 5 103(a) as unpatentable
over McAfee, Disk Space, Disk Cleanup, and Error Codes is not in error.
Appeal 2009-012273
Application 101635,397
DECISION
To summarize, our decision is as follows.
The rejection of claims 1, 5-6, 8, 12-14, 18, 19, 21, 25, 26, and 28
under 35 U.S.C. 5 103(a) as unpatentable over McAfee, Disk Space,
and Disk Cleanup is sustained.
The rejection of claims 7 and 20 under 35 U.S.C. 5 103(a) as
unpatentable over McAfee, Disk Space, Disk Cleanup, and Backup is
sustained.
The rejection of claims 11 and 24 under 35 U.S.C. 5 103(a) as
unpatentable over McAfee, Disk Space, Disk Cleanup, and Error
Codes is sustained.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. 5 1.136(a). See 37 C.F.R.
5 1.136(a)(l)(iv) (2007).
AFFIRMED
mev
Address
IBM CORPORATION
IPLAW SHCBl40-3
Appeal 2009-012273
Application 101635,397
1 1701 NORTH STREET
2 ENDICOTT NY 13760