Ex Parte Krishna

Patent Trial and Appeal Board

Jan 29, 2016

12475707 (P.T.A.B. Jan. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/475,707 0610112009 Murali Mallela Krishna
56436 7590 02/02/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82249658 4015
EXAMINER
ABEL JALIL, NEVEEN
ART UNIT PAPER NUMBER
2165
NOTIFICATION DATE DELIVERY MODE
02/02/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MURALI MALLELA KRISHNA
Appeal2013-009968
Application 12/475,707
Technology Center 2100
Before CAROLYN D. THOMAS, DANIEL J. GALLIGAN, and
SHARON PENICK, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the Examiner
finally rejecting claims 1-20, all the pending claims in the present
application. We have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We REVERSE.
The present invention relates generally to performing testing on a
database system comprising a query optimizer, the query optimizer having
an optimizer plan space comprising a plurality of query plans. See Abstract.
Appeal2013-009968
Application 12/475,707
Claim l is illustrative:
1. A computer-implemented method of testing a
database system comprising a query optimizer, the query
optimizer having an optimizer plan space comprising a plurality
of query plans, the method comprising:
generating a plurality of queries programmatically
according to a template query by varying at least one of an
operation, a predicate or a parameter to produce a plurality of
query plans;
optimizing the plurality of queries using the query
optimizer to collect the plurality of query plans;
selecting a subset of queries from the plurality of
queries using the query optimizer, the subset of queries
comprising queries with distinct query plans that substantially
cover the optimizer plan space; and
executing the subset of queries on the database
system to identify an inefficiency of the database system.
Appellant appeals the following rejections:
RI. Claims 1-7 and 9-20 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Brown (US 7;185;000 Bl; Feb. 27; 2007); and
R2. Claim 8 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brown and Cherkauer (US 2007/0033159 Al, Feb. 8,
2007).
We have reviewed Appellant's arguments in the Briefs, the
Examiner's rejections, and the Examiner's response to the Appellant's
arguments. We concur with Appellant's conclusion that the Examiner erred
in finding that Brown discloses generating a plurality of queries, as set forth
in claim 1 .
As identified by Appellant, Brown "discloses having a single given
query and developing multiple query plans for the single query [and] Brown
is devoid of 'generating a plurality of queries"' (see App. Br. 10).
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Appeal2013-009968
Application 12/475,707
Specifically, Brown discloses "the ability to compare plural execution
plans for a given query, with the plural execution plans generated under
different conditions" (3:55-57). In Brown, "[r]eferring to FIG. 6, a portion
of an example query execution plan is shown ... The screen 430 contains
various icons that correspond to the operations or components involved in
each step of the execution plan" (7:42--48). Furthermore, Brown discloses
that "[ t ]he execution plans 602 and 604 correspond to the same query run
under different conditions" (8:65---67). In other words, Brown discloses
determining a plurality of execution plans for the same query. Appellant
contends, and we agree, that "the Brown passages and Fig. 6 cited by the
Examiner relate to query execution plans for a single given query, and not to
multiple queries" (see Reply Br. 3).
Thus, we disagree with the Examiner's finding that Brown's "Fig. 6 []
disclose[ s] multiple inserts (multiple queries) to re-run multiple plans
associated with each query and thus creating plurality of queries. Since each
query plan will generate a different query ... , plurality of queries are
taught" (Ans. 13). We find that the Examiner is mischaracterizing Brown's
Fig. 6 as depicting multiple queries, because Brown clearly describes Fig. 6
as various icons that correspond to the operations or components involved in
an example query execution plan (see 7:42-8: 19).
Because we agree with at least one of the arguments advanced by
Appellant, we need not reach the merits of Appellant's other arguments.
Accordingly, we will not sustain the Examiner's anticipation rejection of
claims 1-7 and 9-20. Because the Examiner has not relied on Cherkauer to
teach the limitations discussed above with respect to claim 1, we also will
not sustain the rejection of claim 8 under 35 U.S.C. § 103(a).
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Appeal2013-009968
Application 12/475,707
DECISION 1
The decision of the Examiner to reject claims 1-20 is reversed.
REVERSED
Klh
1 In the event of further prosecution, we leave it to the Examiner to consider
if the tangible machine-readable medium claim, claim 20, should be rejected
under 35 U.S.C. § 101. We are compelled to note that the ordinary and
customary meaning of "machine readable medium" to a person of ordinary
skill in the art is broad enough to encompass both non-transitory and
transitory media. Signals are not patent eligible subject matter under § 101.
In re 1\fuijten, 500 F.3d 1346, 1357 (Fed. Cir. 2007). See also 1\1PEP
§ 2106(1) (8th ed. Rev. 9 Aug. 2012) and Ex parte Mewherter, 107 USPQ2d
1857 (PTAB 2013) (precedential). Guidance on this point is provided in
U.S. Patent & Trademark Office, Subject Matter Eligibility of Computer
Readable Media, 1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010) ("A claim
drawn to such a computer readable medium that covers both transitory and
non-transitory embodiments may be amended to narrow the claim to cover
only statutory embodiments to avoid a rejection under 35 U.S.C. § 101 by
adding the limitation 'non-transitory' to the claim."). See also U.S. Patent &
Trademark Office, Evaluating Subject Matter Eligibility Under 35 USC§
101 (August 2012 Update) (pp. 11-14), available at
http://www.uspto.gov/patents/law/exam/10l_training_aug2012.pdf (noting
that while the recitation "non-transitory" is a viable option for overcoming
the presumption that those media encompass signals or carrier waves,
merely indicating that such media are "physical" or tangible" will not
overcome such presumption).
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