Ex Parte Kodialam et al

Patent Trial and Appeal Board

Sep 29, 2016

13459430 (P.T.A.B. Sep. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/459,430 04/30/2012
76614 7590
Terry W. Kramer, Esq.
Kramer & Amado, P.C.
330 John Carlyle Street
3rd Floor
Alexandria, VA 22314
10/03/2016
FIRST NAMED INVENTOR
Murali Kodialam
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.
ALC 3784 4482
EXAMINER
WHIPPLE, BRIAN P
ART UNIT PAPER NUMBER
2454
NOTIFICATION DATE DELIVERY MODE
10/03/2016 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):
mail@krameramado.com
ipsnarocp@alcatel-lucent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MURALI KODIALAM, FANG HAO,
T.V. LAKSHMAN, and SARIT MUKHERJEE
Appeal2015-006177
Application 13/459,430
Technology Center 2400
Before JOHN A. JEFFERY, ERIC S. FRAHM, and
CATHERINE SHIANG, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1---6, 8-14, 16, and 17. Claims 7, 15, and 18-20
have been indicated as containing allowable subject matter. Final Act. 9. 1
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 Throughout this opinion, we refer to (1) the Final Rejection mailed
September 24, 2014; (2) the Appeal Brief filed January 22, 2015 ("App.
Br."); (3) the Examiner's Answer mailed April 30, 2015 ("Ans."); and (4)
the Reply Brief filed June 1, 2015 ("Reply Br.").
Appeal2015-006177
Application 13/459,430
STATEMENT OF THE CASE
Appellants' invention selects a device to provide a cloud resource
based on weight values corresponding to at least part of a set of identified
potential devices for providing the resource. See generally Abstract; Spec.
i-fi-1 42--48; Figs. 3--4. Claim 1 is illustrative:
1. A method performed by a cloud controller comprising a memory
and a processor for fulfilling a request for cloud resources, the method
compnsmg:
receiving, at the cloud controller, a request message including a first
request for a first cloud resource;
identifying, by the cloud controller, a set of potential devices for
providing the first cloud resource;
calculating, by the cloud controller, a plurality of weight values
corresponding to at least a portion of the set of potential devices for
providing the first cloud resource, wherein the plurality of weight values are
calculated based on a plurality of delta values associated with the at
least a portion of the set of potential devices;
selecting, by the cloud controller, a device based on the plurality of
weight values to provide the first cloud resource; and
updating, by the cloud controller, the delta value associated \vith the
selected device.
THE REJECTIONS
The Examiner rejected claims 1--4, 6, 8-12, 14, 16, and 17 under 35
U.S.C. § 102(e)2 as anticipated by Ferris (US 2011/0295999 Al; Dec. 1,
2011). Ans. 3-7.
The Examiner rejected claims 5 and 13 under 35 U.S.C. § 103(a) as
unpatentable over Ferris and Dutta (US 2013/0290536 Al; Oct. 31, 2013).
Ans. 8.
2 Ferris also qualifies as prior art under§ 102(a) since it published before
Appellants' filing date.
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Application 13/459,430
THE ANTICIPATION REJECTION
The Examiner finds that Ferris discloses every recited element of
claim 1 including a cloud controller that ( 1) identifies a set of potential
devices for providing a first cloud resource in paragraphs 26 and 28, and (2)
calculates weight values corresponding to at least a portion of the set in
paragraphs 64 and 65. Ans. 3-5.
Appellants argue that Ferris' weighting data does not correspond to
devices as claimed, but rather system resources, such as availability of
processor cycles, memory, bandwidth capacity, and applications to be
served. App. Br. 6-7; Reply Br. 2-3. Appellants add that because a portion
of a set of potential devices refers to discrete individual units in the set, it
does not refer to sub-segments, such as resources, within those individual
units. App. Br. 7-8. Lastly, Appellants contend that skilled artisans would
not have understood the recited devices to include "abstract metrics," such
as bandwidth capacity, processor uptime, and memory allocation, for such
an interpretation is said to be inconsistent with the Specification. App. Br. 9.
ISSUE
Under§ 102, has the Examiner erred in rejecting claim 1 by finding
that Ferris' cloud controller calculates weight values corresponding to at
least a portion of an identified set of potential devices for providing a first
cloud resource?
ANALYSIS
This appeal turns on one question: What is a "device" for providing a
cloud resource? The Specification does not define the term "device," unlike
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Application 13/459,430
at least one other term whose definition leaves no doubt as to its meaning.
See Spec. i-f 25 (defining "or"). Nevertheless, paragraph 32 of Appellants'
Specification notes that each cloud device 131, 132, 133, 144, 155, and 156
in Figure 1 ( 1) is configured to provide cloud resources for use by client
devices, and (2) may be, among other things, a desktop computer or server.
Although both Appellants and the Examiner refer to client device 110 in
connection with their respective positions regarding the meaning of "device"
(App. Br. 93; Ans. 9), cloud devices-not the client device-provide cloud
resources consistent with the function of the recited potential devices. That
is, the cloud devices provide cloud resources, and the client device uses
those resources. Compare Spec. i-f 29 with i-f 33. Despite this distinction,
client and cloud devices can nevertheless be the same type of device
including, among other things, servers. See id.
Turning to the rejection, the Examiner cites Ferris' paragraphs 26 and
28 for teaching identifying a set of potential devices for providing a first
cloud resource. Ans. 4. In paragraph 26, Ferris notes that, upon receiving a
request to instantiate a set of virtual machines or other resources, cloud
management system 104, which the Examiner equates to the recited "cloud
controller" (Ans. 3), communicates with one or more resource servers 108 to
locate available resources to supply the required components. The system
then selects providers from a diverse set of resource servers to assemble the
components needed to build the virtual machine or other resources. Ferris
3 Although Appellants cite the Specification's paragraph 32 in connection
with a quoted passage regarding client device 110 (App. Br. 9), that passage
actually appears in paragraph 29. Accord Ans. 9 (correctly citing paragraph
29 as supporting this passage).
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Appeal2015-006177
Application 13/459,430
if 26. Accord id. if 28 (noting that a group of available servers in the set of
resource servers 108 is selected to match the instantiation request).
Our emphasis on the terms "devices" and "servers" underscores that
the Examiner's rejection effectively maps the recited "devices" to Ferris'
resource servers 108 that provide cloud resources to satisfy a request. See
Ans. 4. This mapping is not only consistent with the Examiner's reliance on
Ferris' paragraphs 26 and 28 for teaching identifying potential devices in the
rejection (see id.), but also consistent with the Examiner's statement on page
13 of the Answer where the Examiner equates the recited "device" with
either (1) a processor, or (2) a "computing system"-the latter term
consistent with Ferris' parlance in paragraph 44 that equates a "computing
system" with a server. In this latter interpretation, then, the server is
mapped to the recited "device"-not just its processor. See Ans. 13.
Appellants' arguments directed solely to the alleged impropriety of the
Examiner's mapping a processor or "abstract metrics" in Ferris to the recited
"device" (App. Br. 6-9; Reply Br. 2--4) are unavailing, for they are
inapposite to the Examiner's equating Ferris' resource servers with the
recited "devices" as noted above.
To be sure, the Examiner also equates the recited "device" to a
processor on pages 10 to 13 of the Answer. But this interpretation is merely
an alternative to the server-based interpretation articulated in the rejection
and on page 13 of the Answer. Therefore, whether the servers' processors or
other server components or resources cannot constitute a portion of a set of
potential devices as Appellants contend (App. Br. 7-8) is a question we need
not reach, for individual servers of the set of selected servers 108 in Ferris
constitute at least a portion of that set, even under Appellants'
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Application 13/459,430
characterization that such a portion must contain like elements. App. Br. 7.
In any event, Appellants' contention that skilled artisans would not interpret
a processor as a "device" because it is ostensibly not a "whole machine"
(Reply Br. 3) is not only unsubstantiated, it runs counter to the established
meaning of "processor" in the art, namely "[a] device that performs one of
many functions, usually a central processing unit." McGRAW-HILL
DICTIONARY OF ELECTRICAL & COMPUTER ENGINEERING 448 (2004)
(emphasis added).
Lastly, we see no error in the Examiner's finding that Ferris' cloud
controller calculates weight values corresponding to at least a portion of an
identified set of potential server-based devices for providing a first cloud
resource in Ferris' paragraphs 64 and 65. Ans. 4. Notably, Ferris' resource
importance data 335 includes weighting data indicating the relative
importance of a resource, such as processor up-time, compared to other
resources (e.g., memory allocation), and this data is used to select a
deployment configuration consistent with those relative preferences. Ferris
iTiT 64---65.
Ferris' weight values, then, at least correspond to at least a portion of
the set of potential devices, namely the identified set of resource servers 108,
for they provide the respective resources needed to satisfy a request. See
Ferris iT 30 (noting that each participating server in a set of resource servers
108 indicates a status regarding provisioning their respective resources
which can include, availability of a dedicated amount of processor cycles,
amounts of memory, bandwidth capacity, software applications, etc.).
Appellants' arguments to the contrary (App. Br. 6-9; Reply Br. 2-3) are
unavailing and not commensurate with the scope of the claim.
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Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2--4, 6, 8-12, 14, 16, and 17 not argued separately with
particularity.
THE OBVIOUSNESS REJECTION
We also sustain the Examiner's obviousness rejection of claims 5 and
13. Ans. 8. Appellants reiterate similar arguments made in connection with
claim 1 (App. Br. 10) that we find unpersuasive for the reasons previously
discussed.
CONCLUSION
The Examiner did not err in rejecting (1) claims 1--4, 6, 8-12, 14, 16,
and 17 under§ 102, and (2) claims 5 and 13 under§ 103.
DECISION
The Examiner's decision rejecting claims 1---6, 8-14, 16, and 17 is
affirmed.
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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