Ex Parte Koning et al

Board of Patent Appeals and Interferences

Jan 31, 2011

10762985 (B.P.A.I. Jan. 31, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/762,985 01/21/2004 G. Paul Koning 3721.1004-005
(EQLC-P01-0
5999
21005 7590 02/01/2011
HAMILTON, BROOK, SMITH & REYNOLDS, P.C.
530 VIRGINIA ROAD
P.O. BOX 9133
CONCORD, MA 01742-9133
EXAMINER
NANO, SARGON N
ART UNIT PAPER NUMBER
2447
MAIL DATE DELIVERY MODE
02/01/2011 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte G. PAUL KONING, PETER C. HAYDEN,
PAULA LONG, and DANIEL E. SUMAN
____________
Appeal 2009-006976
Application 10/762,9851
Technology Center 2400
____________

Before JOSEPH L. DIXON, JEAN R. HOMERE, and JOHN A. JEFFERY,
Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL2

1 Filed on January 21, 2004. This application claims priority from
provisional application 60/441,810, filed on January 21, 2003. The real
party in interest is Equallogic Inc. (App. Br. 3.)
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 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.
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I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) (2002) from the
Examiner’s final rejection of claims 1, 3 through 8, and 10 through 13.
(App. Br. 3.) Claims 2 and 9 have been cancelled. (Id.) We have
jurisdiction under 35 U.S.C. § 6(b) (2008).
We affirm-in-part.
Appellants’ Invention
Appellants invented a system for both storing data blocks and
distributing client requests across a plurality of servers. (Spec. 1, ll. 13-14.)
Illustrative Claim
Independent claim 1 further illustrates the invention as follows:
1. A system for managing a set of connections between a plurality
of clients and a plurality of servers based on system load, comprising:

a plurality of storage servers having the set of resources
partitioned thereon, each server having

a load monitor process capable of communicating with other
load monitor processes for generating a measure of system load, and a
client load on each of the plurality of servers; and

a client distribution process, responsive to the system load, and
capable of repartitioning the set of client connections for distributing
client load by moving at least one client connection from a first server
of the plurality of servers to a second server of the plurality of servers.

Prior Art Relied Upon
The Examiner relies on the following prior art as evidence of
unpatentability:
O’Neil 6,128,279 Oct. 3, 2000

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Rejection on Appeal
The Examiner rejects claims 1, 3 through 8, and 10 through 13 under
35 U.S.C. § 102(e) as being anticipated by O’Neil.
Appellants’ Contentions
Appellants contend that O’Neil fails to disclose “a plurality of storage
servers having the set of resources partitioned thereon,” as recited in
independent claim 1. (App. Br. 9-10.) Appellants argue that O’Neil fails to
disclose partitioning resources across storage servers, and that O’Neil’s
servers do not provide access to a resource having a portion partitioned
thereon. (Id. at 10.) Appellants also allege that O’Neil discloses load
balancing among multiple identical servers, each of which provides the
requested resource, whereas the claimed invention is directed to partitioning
the resource such that some parts of the resource are available only on one
server and other parts of the resource are available on another server. (Reply
Br. 4-6.) Moreover, Appellants contend that O’Neil’s disclosure of memory
locations that store a load value, in conjunction with reprogramming the load
value, does not teach partitioning resources. (Id. at 6.)
Further, Appellants argue that O’Neil’s disclosure of re-routing client
requests to a new server does not teach moving established client
connections between servers. (App. Br. 10-11.) In particular, Appellants
allege that O’Neil’s disclosure of re-routing a client request does not teach
moving a given connect from one server to another, but rather involves
breaking the connection and sending a message that redirects the client to a
new server. (Reply Br. 6-7.) Additionally, Appellants contend that O’Neil’s
embodiment directed to the World Wide Web (hereinafter “WWW”)
involves connections to Hypertext Transfer Protocol (hereinafter “HTTP”)
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that are short lived. (App. Br. 11.) Therefore, Appellants argue that O’Neil
discloses closing HTTP connections after a single request response pair,
whereas the claimed invention is directed to moving connections. (Id.)
Examiner’s Findings and Conclusions
The Examiner finds that O’Neil discloses dividing the servers into two
groups, whereby the first group of servers is capable of handling a load
greater than a first determined value and the second group of servers is
capable of handling a load less than the first determined value. (Ans. 6.)
Therefore, the Examiner finds that O’Neil’s disclosure teaches allocating
resource requests between the two groups of servers based on their
capability of handling certain loads. (Id. at 6-7.) The Examiner also finds
that O’Neil discloses that the memory of each server is configured to store a
set of resources, a first predetermined value, and a second predetermined
value. (Id. at 7.) Therefore, O’Neil teaches partitioning the memory of each
server. (Id.)
Further, the Examiner finds that O’Neil discloses processing a request
on an online server, an offline server, or a server capable of handling a
bigger load. (Id.) In particular, the Examiner finds that O’Neil’s disclosure
of a load balancing technique that redirects a client request to a server
capable of handling a bigger load teaches moving established client
connections between servers. (Id.)

II. ISSUE
Have Appellants shown that the Examiner erred in finding that O’Neil
anticipates independent claim 1? In particular, the issue turns on whether
O’Neil teaches the following claim limitations:
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(a) “a plurality of storage servers having the set of resources
partitioned thereon,” as recited in independent claim 1; and
(b) “a client distribution process, responsive to the system load, and
capable of repartitioning the set of client connections for distributing client
load by moving at least one client connection from a first server of the
plurality of servers to a second server of the plurality of servers,” as recited
in independent claim 1.

III. FINDINGS OF FACT
The following Findings of Fact (hereinafter “FF”) are shown by a
preponderance of the evidence.
O’Neil
FF 1. O’Neil discloses implementing a peer-to-peer load balancing
system in a network of servers, whereby each server is capable of
distributing a request among the other servers within the network based on
either the load currently being processed in the respective server, or the
contents of the request. (Col. 1, ll. 8-14.)
FF 2. O’Neil’s figure 1 depicts the topology of a web site (1), which
includes a router (2), local domain name server (hereinafter “DNS”) (4), a
server cluster comprising web servers (7, 9, & 10), a packet filter (11), and
an internal network (12). (Col. 5, ll. 7-12.) In particular, O’Neil discloses
that web servers (7, 9, & 10) each include a microprocessor and memory that
stores process steps to effect information retrieval. (Id. at ll. 26-28.)
Moreover, O’Neil discloses that the memory in each web server (7, 9, & 10)
is also capable of storing and maintaining programs and other data between
power cycles, and being reprogrammed periodically. (Id. at ll. 28-32.)
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FF 3. O’Neil discloses that the memory of each web server (7, 9, &
10) also stores a computer-executable module comprising process steps for
performing peer-to-peer load balancing. (Id. at ll. 34-37.) That is, O’Neil
discloses that web server (7) includes load balancing module (17), web
server (9) includes load balancing module (19), and web server (10) includes
load balancing module (20). (Id. at ll. 37-40.) O’Neil discloses that the
microprocessors on the web servers (7, 9, & 10) execute the load balancing
modules (17, 19, & 20) so as to distribute requests among each web server.
(Id. at ll. 40-42.)
FF 4. O’Neil discloses that the “load balancing modules continuously
exchange information regarding their respective loads, so that this
information is instantly available for comparison.” (Col. 6, ll. 42-44.)

IV. ANALYSIS
Claim 1
Independent claim 1 recites, in relevant part:
1) a plurality of storage servers having the set of resources partitioned
thereon; and 2) a client distribution process, responsive to the system
load, and capable of repartitioning the set of client connections for
distributing client load by moving at least one client connection from
a first server of the plurality of servers to a second server of the
plurality of servers.

First, we consider the scope and meaning of the phrase “a plurality of
storage servers having the set of resources partitioned thereon,” which must
be given the broadest reasonable interpretation consistent with Appellants’
disclosure, as explained in In re Morris, 127 F.3d 1048 (Fed. Cir. 1997):
[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary
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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 the applicant's specification.
Id. at 1054. See also Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) (stating that
“claims must be interpreted as broadly as their terms reasonably allow.”)
Appellants’ Specification states that:
[i]n a typical operation, a client 12 will contact one of the servers, for
example server 161, in the group 16 to access a resource, such as a
data block, page, file, database, application, or other resource.

(Spec. 9, ll. 14-16)(emphasis added.)
Appellants’ Specification also states that:
there is no specific limit on the number of resources or data volumes.
Each data volume may be contained entirely on a single server, or it
may be partitioned over several servers, either all of the servers in the
server group, or a subset of the server group.

(Spec. 10, ll. 10-13.)
Our reviewing court states, “the ‘ordinary meaning’ of a claim term is
its meaning to the ordinary artisan after reading the entire patent.” Phillips
v. AWH Corp., 415 F.3d 1303, 1321 (Fed. Cir. 2005).
Upon reviewing Appellants’ Specification for context, we conclude
that the claimed phrase “a plurality of storage servers having the set of
resources partitioned thereon” may be broadly, but reasonably construed as
storing at least two or more data blocks, pages, files, databases, applications,
or other resources on each server within the plurality of servers.
As detailed in the Findings of Fact section above, O’Neil discloses a
network of servers that implements a peer-to-peer load balancing system,
whereby each server can distribute a request among the other servers based
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on either the load capabilities of each server or the contents of the request.
(FF 1.) In particular, O’Neil discloses a plurality of web servers, each of
which includes a microprocessor and memory that stores process steps for
information retrieval. (FF 2.) Moreover, O’Neil discloses that the memory
in each web server is also capable of storing programs and other data. (Id.)
We find that O’Neil’s disclosure teaches a load balancing system that
consists of a network of web servers, each of which includes memory for
storing programs and other data. Therefore, consistent with our claim
construction above, we find that O’Neil’s disclosure teaches storing both
programs and other data on the memory located within each web server.
Thus, we find that O’Neil teaches “a plurality of storage servers having the
set of resources partitioned thereon,” as recited in independent claim 1.
Next, O’Neil discloses that the memory of each web server is also
capable of storing a module that performs peer-to-peer load balancing. (FF
3.) In particular, O’Neil discloses that the microprocessor on each web
server executes the load balancing module so as to redistribute or redirect a
request to another web server within the load balancing system. (Id.)
Further, O’Neil discloses that the load balancing modules continuously
exchange information pertaining to their respective load capabilities, so that
such information is instantly available for comparison. (FF 4.)
We find that O’Neil’s disclosure teaches that each web server
incorporates a load balancing module, which redirects a client request from a
first web server to a second web server based on the respective load
capabilities of each web server. Consequently, we find that O’Neil’s
disclosure teaches a client distribution process that monitors and
communicates the respective load capabilities of each web server before
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moving a client connection from a first web server to a second web server.
Thus, we find that O’Neil teaches “a client distribution process, responsive
to the system load, and capable of repartitioning the set of client connections
for distributing client load by moving at least one client connection from a
first server of the plurality of servers to a second server of the plurality of
servers,” as recited in independent claim 1.
Alternatively, we note that the disputed claim limitation only requires
“a client distribution process, responsive to the system load, and capable of
repartitioning the set of client connections for distributing client load…”.
(Claims App'x) (emphasis added.) We find that this recitation merely
requires that the client distribution process be capable of performing the
recited function of repartitioning. Such recitation does no require, however,
that the client distribution process actually perform the recited function of
repartitioning. This recitation is a statement of intended use, which is fully
met by a prior art structure that is capable of performing the recited function.
A statement of intended use in an apparatus claim cannot distinguish over a
prior art apparatus that discloses all the recited limitations and is capable of
performing the recited function. See In re Schreiber, 128 F.3d 1473, 1477
(Fed. Cir. 1997). We note that “[a]n intended use or purpose usually will not
limit the scope of the claim because such statements usually do no more than
define a context in which the invention operates.” Boehringer Ingelheim
Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir.
2003). Although “[s]uch statements often … appear in the claim's
preamble,” In re Stencel, 828 F.2d 751, 754 (Fed. Cir. 1987), a statement of
intended use or purpose can appear elsewhere in a claim. Id. We are
therefore satisfied that the O’Neil teaches an equivalent structure that is
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capable utilizing a client distribution process to perform the recited function
of repartitioning. (FFs 3 & 4.) It follows that Appellants have not shown
that the Examiner erred in finding that O’Neil anticipates independent claim
1.
Claims 3 through 8 and 11
Appellants do not provide separate arguments for patentability with
respect to dependent claims 3 through 8 and 11. Therefore, we select
independent claim 1 as representative of the cited claims. Consequently,
Appellants have not shown error in the Examiner’s rejection of dependent
claims 3 through 8 and 11 for the reasons set forth in our discussion of
independent claim 1. See 37 C.F.R. § 41.37(c)(1)(vii).
Claim 10
Appellants contend that O’Neil’s disclosure of a load balancing
technique that is based on a predetermined level does not teach “wherein the
client distribution process adaptively distributes client connections across
the plurality of servers as a function of dynamic variations in measured
system load,” as recited in dependent claim 10. (App. Br. 12.) In particular,
Appellants argue that O’Neil’s load balancing technique utilizes a set
predetermined level, whereas the claimed “client distribution process” is
adaptively distributed based on dynamic variations (i.e., multiple
dimensions, the specific decisions made for a given set of measurements that
may depend on administrative policies, historical data about client activity,
the capabilities of the various servers and network components, etc.). (Id.)
We do not agree.
As set forth above, O’Neil’s disclosure teaches a client distribution
process that monitors and communicates the respective load capabilities of
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each web server before moving a client connection from a first web server to
a second web server. Consequently, we find that O’Neil’s client distribution
process adaptively distributes client connections as a function of monitoring
and communicating the load capabilities of the various web servers within
the disclosed system. Thus, we find that O’Neil teaches the disputed
limitation. It follows that Appellants have not shown that the Examiner
erred in finding that O’Neil anticipates dependent claim 10.
Claim 12
Appellants contend that O’Neil fails to teach “a storage device for
providing at least one volume of storage partitioned across the plurality of
servers,” as recited in dependent claim 12. (App. Br. 13.) In particular,
Appellants argue that O’Neil’s back-end servers do not have at least one
volume of storage that is partitioned across the plurality of servers. (Id.)
We agree.
As set forth above, we find that O’Neil’s disclosure teaches storing
both programs and other data on the memory located within each web
server. However, we find that O’Neil fails to teach or fairly suggest a
storage device that provides at least one volume of storage partitioned across
the plurality of servers. While the memory located within each of O’Neil’s
web servers may be capable of aggregating at least one volume of storage
partitioned across the plurality of servers, such conjecture would require us
to resort to speculation, unfounded assumptions, or hindsight reconstruction.
See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). We will not resort to
such speculation or assumptions to cure the deficiencies in the factual basis
in order to support the Examiner’s rejection. Therefore, we find that the
Examiner has improperly relied upon O’Neil’s disclosure to teach or fairly
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suggest the disputed limitation. It follows that Appellants have shown that
the Examiner erred in finding that O’Neil anticipates dependent claim 12.
Claim 13
Appellants contend that O’Neil fails to teach utilizing servers to
provide “[a] storage area network,” as recited in dependent claim 13. (App.
Br. 13.) In particular, Appellants argue that O’Neil’s web servers do not
provide storage area network functionality. (Reply Br. 7-8.) We do not
agree.
As set forth above, O’Neil’s disclosure teaches a load balancing
system that consists of a network of web servers, each of which includes
memory for storing programs and other data. In particular, we find that
O’Neil’s network of web servers, each of which includes memory, amounts
to a group of servers that functions as both a network and storage device.
Thus, we find that O’Neil’s disclosure teaches the disputed limitation. It
follows that Appellants have not shown that the Examiner erred in finding
that O’Neil anticipates dependent claim 13.

V. CONCLUSIONS OF LAW
1. Appellants have not shown that the Examiner erred in rejecting
claims 1, 3 through 8, 10, 11, and 13 as being anticipated under 35 U.S.C.
§ 102(e).
2. Appellants have shown that the Examiner erred in rejecting
claim 12 as being anticipated under 35 U.S.C. § 102(e).

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VI. DECISION
1. We affirm the Examiner’s decision to reject claims 1, 3 through
8, 10, 11, and 13 as being anticipated under 35 U.S.C. § 102(e).
2. We reverse the Examiner’s decision to reject claim 12 as being
anticipated under 35 U.S.C. § 102(e).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

Vsh

HAMILTON, BROOK, SMITH & REYNOLDS, P.C.
530 VIRGINIA ROAD
P.O. BOX 9133
CONCORD, MA 01742-9133