Ex Parte LI et al

Patent Trial and Appeal Board

Jan 27, 2017

12758597 (P.T.A.B. Jan. 27, 2017)

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.
12/758,597 04/12/2010 Wen-SyanLi 0010-105001/2009P00007US1 5276
56056 7590 01/31/2017
BRAKE HUGHES BELLERMANN LLP
C/O CPA Global
900 Second Avenue South
Suite 600
MINNEAPOLIS, MN 55402
EXAMINER
CHOUDHURY, AZIZUL Q
ART UNIT PAPER NUMBER
2456
NOTIFICATION DATE DELIVERY MODE
01/31/2017 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):
uspto@brakehughes.com
docketing@brakehughes.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WEN-SYAN LI and JIAN XU
Appeal 2016-004902
Application 12/758,597
Technology Center 2400
Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 1—20, which constitute all the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Invention
The disclosed and claimed invention on appeal relates to “service
level agreement” (SLA) compliant placement of multi-tenant database
Appeal 2016-004902
Application 12/758,597
applications.1 (Title, 1 6). Appellants’ invention uses a genetic algorithm to
incorporate SLA requirements into the placement optimization process.
(Spec. 136). Appellants’ “system 100 is capable of proposing ‘best-
available’ placements of the tenants 104 to the servers 106, even when there
is no known solution that matches all of the SLA requirements completely.”
(Id.; see also Fig. 1).
Representative Claim
1. A computer system including instructions recorded on a non-
transitory computer-readable medium and executable by at least
one processor, the system comprising:
a placement manager configured to cause the at least one
processor to determine a placement of each of a plurality of
tenant databases with one of a plurality of servers, the plurality
of tenant databases including original tenant databases and
replicated tenant databases that are duplicated from the original
tenant databases, wherein the placement manager includes:
an input handler configured to determine constraints of a
service level agreement (SLA) governing an association of the
plurality of tenant databases with the plurality of servers, and
configured to determine computational constraints associated
with the plurality of servers, the constraints including SLA
constraints specifying a premium class of tenants and a regular
class of tenants associated with the plurality of tenant databases,
the premium class having access to more replicated databases
than the regular class;
a chromosome2 generator configured to generate a
1 Appellants acknowledge “the concept of multi-tenancy, by itself, for
hosted database applications, is well known.” (Spec. 131).
2 We note the claim term “chromosome” is a term of art used in the context
of genetic algorithms. Cf. He, Col. 8,1. 49. See also He, col. 1,11. 40-42:
“genetic algorithms (GA) are well-known stochastic optimisation [Br. sp.]
search methods which are based on a global search procedure.”
2
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Application 12/758,597
plurality of chromosomes including first and second
chromosomes identifying a potential placement of each of the
plurality of tenant databases with two or more of the plurality of
servers and with the premium class having access to more
replicated databases than the regular class, the second
chromosome identifying at least one of the plurality of servers in
failure;
a chromosome comparator configured to compare each of
the plurality of chromosomes based on compliance with the SLA
constraints and relative to the computational constraints, and
configured to evaluate each of the plurality of chromosomes for
fault tolerance specified in terms of the at least one of the
plurality of servers in failure relative to the potential placement
of each of the tenant databases associated with the premium
tenants as compared to the potential placement of each of the
tenant databases associated with the regular tenants, to thereby
output a selected subset of the plurality of chromosomes;
a chromosome combiner configured to combine
chromosomes of the selected subset of the plurality of
chromosomes to obtain a next generation of chromosomes for
output to the chromosome comparator and for subsequent
comparison therewith of the next generation of chromosomes
with respect to the SLA constraints and the computational
constraints, as part of an evolutionary loop of the plurality of
chromosomes between the chromosome comparator and the
chromosome combiner; and
a placement selector configured to monitor the
evolutionary loop and to select a selected chromosome therefrom
for implementation of the placement based thereon.
(n.2 cont’d) See Appellants’ Spec. 136: “In particular, the system 100 may
implement a randomized algorithm approach known as a genetic algorithm
(GA), which refers generally to a computer simulation of Darwinian natural
selection that iterates through successive generations to converge toward the
best solution in the problem/solution space.” See also Spec. 138: “In the
system 100, the above-referenced genetic algorithm approach may be
implemented, for example, by creating a “chromosome” representing a
possible solution to the problem . . . .” (emphasis added).
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Application 12/758,597
Rejections
Rl. Claims 1—10 and 13—20 are rejected under 35 U.S.C. § 103(a)
over the combined teachings and suggestions of Kwok et al. (US
2010/0077449 Al; pub. Mar. 25, 2010) (“Kwok”), Yemeni et al. (US
2010/0023564; pub. Jan. 28, 2010) (“Yemeni”), Karlsson3 et al. (US
7,000,141 Bl; iss. Feb. 14, 2006) (“Karlsson”), Jia et al. (US 8,380,960 B2;
iss. Feb. 19, 2013) (“Jia”), and in further view of He (US 7,593,905 B2; iss.
Sept. 22, 2009).
R2. Claim 11 is rejected under § 103(a) as being unpatentable over
the combined teachings and suggestions of Kwok, Yemeni, Jia, Karlsson,
He, and in further view of Sauermann (US 2005/0177833 Al; Aug. 11,
2005).
R3. Claim 12 is rejected under § 103(a) as being unpatentable over the
combined teachings and suggestions of Kwok, Yemeni, Jia, Karlsson, He,
and in further view of Hebert et al. (US 8,301,776 B2; Oct. 30, 2012)
(“Herbert”).
Grouping of Claims
Based on Appellants’ arguments (App. Br. 8—19), we decide the
appeal of rejection Rl of claims 1—10 and 13—20 on the basis of
representative claim 1. To the extent Appellants have not advanced
separate, substantive arguments for the remaining dependent claims 11
and 12, rejected under Rejections R2 and R3, respectively, such arguments
are considered waived. See 37 C.F.R. § 41.37(c)(l)(iv).
3 Karlsson is omitted in the rejection heading, but is applied against the
claims in the body of the rejection. (See Final Act. 2, 8—11). We find this
omission to be a typographical error by the Examiner.
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Application 12/758,597
ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.
Rejection R1 of Representative Claim 1 under 35 U.S.C. §103
Issue: Under § 103, did the Examiner err by improperly combining
the cited references?
Appellants contend: “[t]he independent claims would not have been
obvious on the combination proposed in the Final Office Action because
combining Kwok with Yemeni, Jia, Karlsson and He in the manner proposed
by the Final Office Action would have required a change in the respective
functions and/or principles of operation of, at least, Kwok, Yemeni and
Karlsson.” (App. Br. 13) (emphasis added).
Regarding specific references, Appellants contend:
Modifying Kwok to determine placement of application or
middleware tenants by iteratively and serially evaluating a set
of trial solutions under different failure scenarios, such as
disclosed in Karlsson and proposed in the Final Office Action,
would have required a change in the functions and/or a change
in the principle of operation of Kwok. Again, the approach
disclosed in Kwok is based on an evaluation of available
resources for multi-tenant applications at run time. In the
approach disclosed in Kwok, if available resources are
insufficient, new application instances and/or servers are created.
FN 18 (See Kwok, Fig. 7). Modifying Kwok in view of
Karlsson, as proposed in the Final Office Action, would have
required a change in the function and/or a change the principle
of operation of Kwok to use an iterative and serial evaluation of
trial solutions under different failure scenarios rather than a
determination of available resource at run time.
(App. Br. 14) (emphasis added).
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Application 12/758,597
As described above, Yemeni discloses a runtime approach for
replication of databases in response to run-time failures
preventing access to instances of those databases. In Yemeni, if
a run-time failure or resource limitation occurs that prevents
access to a database, that database is replicated or migrated. (FN
19: See e.gfj Yemeni, Figs 3 and 4, paragraphs 0022-0027).
Modifying Yemeni to determine placement of database
instances by serially and iteratively evaluating a population
of trial solutions under different, potential failure scenarios,
such as disclosed in Karlsson and proposed in the Final Office
Action, would have required a change in at least this function
and/or principle of operation of Yemeni.
(App. Br. 15) (emphasis added).
Appellants contend the Examiner has relied on impermissible hindsight:
None of the applied references can be stitched together in the
manner proposed in the Final Office Action without a set of
detailed elements provided only by the present claims (and
description) in hindsight, such as for at least the reasons
discussed above. Specifically, the references in the proposed
combination do not suggest or even permit the precise surgery
set forth in the Final Office Action to meet the elements of the
independent claims.
(App. Br. 17) (emphasis added).
Change in the Principal of Operation
At the outset, we find Appellants’ “change in the principal of
operation” argument is premised on the bodily incorporation of the features
of the cited references. However, “it is not necessary that the inventions of
the references be physically combinable to render obvious the invention
under review.” In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983).4
4 The relevant inquiry is whether the claimed subject matter would have
been obvious to those of ordinary skill in the art in light of the combined
teachings of those references. See In re Keller, 642 F.2d 413, 425 (CCPA
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Appellants emphasize “Kwok is based on an evaluation of available
resources for multi-tenant applications at run time. (App. Br. 14, emphasis
added.) Appellants further note: “Yemeni discloses a runtime approach for
replication of databases in response to run-time failures preventing access
to instances of those databases.” (App. Br. 15) (emphasis added).
We find Appellants’ “change in the principle of operation” argument
is also premised on an erroneous assumption that the runtime approaches of
Kwok and Yemeni would be incompatible with Karlsson’s serial and
iterative approach that evaluates a population of trial solutions under
different, potential failure scenarios, or with He’s teaching of using genetic
algorithms to find optimal solutions to combinatorial problems. (See App.
Br. 14—17).
Contrary to Appellants’ arguments, we find an artisan at the time of
the invention would have known that computers routinely perform serial and
iterative evaluations at runtime, i.e., in real time, on the order of thousands
of instructions per second (kIPS), or even millions of instructions per second
(MIPS), depending on variable factors such as CPU clock speed, cache or
memory access speed, instruction types, execution order, and the presence of
branch instructions, among other factors. Moreover, we find Karlsson
describes an alternative embodiment that applies its analytical or simulation
model to a “real distributed system” i.e., a real (physical) distributed system
at runtime:
1981). See KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (the
conclusion of obviousness can be based on the interrelated teachings of
multiple patents, the effects of demands known to the design community or
present in the marketplace, and the background knowledge possessed by a
person having ordinary skill in the art.)
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Application 12/758,597
As mentioned, the method 200 may be performed on a real
distributed system, as is illustrated in FIG. 1. Alternately, the
method 200 may be performed on a model of the distributed
system, such as an analytical model or a simulation model.
Where the distributed system 100 is modeled, the model may be
implemented, for example, by the computer system 400. A real
system may then be constructed based on results using the model.
The methods of FIGS. 2 and 3 may then be applied to the real
system so constructed. In this way, the results based on the model
can be verified and refined, as necessary, using the methods of
FIGS. 2 and 3.
(Karlsson, col. 7,1. 59- col. 8,1. 3).
Similarly, we find no description in the He patent reference that
precludes the use of genetic algorithms (implemented in code that is
executed in real time on a physical computer) to solve problems in a runtime
environment. The He patent reference expressly describes: “The invention
is expected to find particular although not exclusive application in the fields
of load balancing (e.g., processor and network load balancing), scheduling
optimization (including production scheduling, resource assignments,
timetable scheduling) and resource planning.” (He, Col. 1,11. 15—20)
(emphasis added). Similarly, Jia describes a system in which “[t]he
allocation of users and their data may be balanced across storage in a
distributed storage system.” (Col. 1,11. 55—56).
Hindsight
Regarding Appellants’ hindsight argument, we are cognizant that our
reviewing courts have not established a bright-line test for hindsight. In KSR
Int'l Co. v. Teleflex, Inc., 550 U.S. 398 (2007), the U.S, Supreme Court
guides that “[a] factfinder should be aware, of course, of the distortion
caused by hindsight bias and must be cautious of argument reliant upon ex
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Application 12/758,597
post reasoning.” KSR, 550 U.S. at 421 (citing Graham v. John Deere Co. of
Kansas City, 383 U.S. 1, 36 (1966)). Nevertheless, the Supreme Court
qualified the issue of hindsight by stating, “[rjigid preventative rales that
deny factfinders recourse to common sense, however, are neither necessary
under our case law nor consistent with it.” Id.
In reviewing the record, we find Appellants have not identified any
knowledge relied upon by the Examiner that was gleaned only from
Appellants’ disclosure and that was not otherwise within the level of
ordinary' skill in the art at the time of invention. See In re McLaughlin, 443
F.2d 1392, 1395 (CCPA 1971).
To the extent Appellants rely on Mintz v. Dietz and Watson, Inc., 679
F.3d 1372 (Fed. Cir. 2012) (App. Br. 18), unlike in Mintz, here Appellants
do not present any objective evidence of secondary considerations. Our
reviewing court guides that evidence of secondary considerations “operates
as a beneficial check on hindsight.” Cheese Systems, Inc. v. Tetra Pak
Cheese and Powder Systems, Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013).
Moreover, Appellants have not provided persuasive evidence that
combining the respective teachings of the references (as proffered by the
Examiner) would have been “uniquely challenging or difficult for one of
ordinary skill in the art,” or that such a combination would have
“represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007).
Therefore, in light of the above, and after reviewing the respective
teachings and suggestions of the references (as cited by the Examiner, Final
Act. 3—10), we find the Examiner provided sufficient articulated reasoning
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Application 12/758,597
with some rational underpinning to establish why an artisan would have
been motivated to combine the references. (Id.)
Accordingly, on this record, and based upon a preponderance of the
evidence, we are not persuaded the Examiner erred in combining the cited
references. We therefore sustain the Examiner’s rejection R1 of
representative independent claim 1, and the grouped claims which fall
therewith. See Grouping of Claims, supra.
Rejections R2 and R3
Appellants do not present substantive separate arguments regarding
claims 11 and 12. Arguments not made are waived. See 37 C.F.R.
§ 41.37(c)(l)(iv). We therefore sustain the Examiner’s rejections R2 and R3
of dependent claims 11 and 12, respectively.
DECISION
We affirm the Examiner’s rejections of claims 1—20 under 35 U.S.C.
§ 103(a).
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37 C.F.R. § 41.50(f).
AFFIRMED
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