Ex Parte LI et alDownload PDFPatent Trial and Appeal BoardJun 29, 201612984938 (P.T.A.B. Jun. 29, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/984,938 01/05/2011 76614 7590 Terry W, Kramer, Esq, Kramer & Amado, P.C. 330 John Carlyle Street 3rd Floor Alexandria, VA 22314 07/01/2016 FIRST NAMED INVENTOR Li Li 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 3671 3284 EXAMINER BILGRAMI, ASGHAR H ART UNIT PAPER NUMBER 2645 NOTIFICATION DATE DELIVERY MODE 07/01/2016 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 LI LI and THOMAS WOO 1 Appeal 2015-001837 Application 12/984,938 Technology Center 2600 Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and JAMES W. DEJMEK, Administrative Patent Judges. DEJMEK, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-11 and 20-42. Claims 12-19 have been withdrawn. App. Br. 24-- 26. We have jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify Alcatel Lucent as the real party in interest. App. Br. 2. Appeal 2015-001837 Application 12/984,938 STATEMENT OF THE CASE Introduction Appellants' invention is directed to scaling resources within a computing system. Abstract. In a disclosed embodiment, the number of resources is adjusted based on a system work load, the ideal resource load for each resource, and a current number of resources. Spec. i-f 7. Claim 1 is representative of the subject matter on appeal and is reproduced below with the disputed limitation emphasized in italics: 1. A method of scaling resources of a computing system, the method comprising: setting a threshold value for a first metric of system performance; determining at least one ideal resource load for at least one resource based on the threshold value for the first metric; distributing a system work load among the computing system resources; and adjitsting the nitmber of resoitrces based on the S}'Stem vvorlr load, the ideal resource load, and a current number of resources. The Examiner's Rejection Claims 1-11 and 20---42 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Waclawsky et al. (US 5,446,874; Aug. 29, 1995) ("Waclawsky") and Wolff (US 6,185,601 Bl; Feb.6, 2001). Final Act. 2- 10. 2 Appeal 2015-001837 Application 12/984,938 Issues on Appeal2 1. Did the Examiner err in finding the combination of Waclawsky and Wolff teaches or suggests "adjusting the number of resources based on the system work load, the ideal resource load, and a current number of resources," as recited in claim 1? 2. Did the Examiner err in finding the combination of Waclawsky and Wolff teaches or suggests determining that the computing system has reached a performance bottleneck "if at least a predetermined number of the resources are operating inefficiently," as recited in claim 31 or "if the actual system metric value gain is less than a set percentage of the estimated system metric gain value," as recited in claim 37? ANALYSIS 3 Claims 1-11 and 20-30 Appellants contend the Examiner erred in finding the combination of Waclawsky and Wolff teaches or suggests "adjusting the number of resources based on the system work load, the ideal resource load, and a current number of resources," as recited in claim 1. App. Br. 5-13; Reply 2 Appellants assert the Examiner has failed to respond to the substance of previously-presented arguments. App. Br. 17-18. This is a petitionable matter, not an appealable matter and, accordingly, is not properly before us. See In re Schneider, 481F.2d1350, 1356-57 (CCPA 1973); In re Mindick, 371F.2d892, 894 (CCPA 1967); see also MPEP §§ 1002.02(c)(3), 1003, and 1201. 3 Throughout this Decision, we have considered the Appeal Brief filed May 29, 2014 ("App. Br."); the Reply Brief filed November 6, 2014 ("Reply Br."); the Examiner's Answer mailed on September 10, 2014 ("Ans."); and the Final Office Action ("Final Act.") mailed on November 29, 2013, from which this Appeal is taken. 3 Appeal 2015-001837 Application 12/984,938 Br. 3-8. In particular, Appellants assert (i) Wolff "does not disclose any adjustment to a number of resources and is, instead directed to load balancing among a static number of servers" (App. Br. 6) (emphasis omitted); (ii) the "ideal capacity" as taught in Wolff, is different than the proposed function of serving as a basis for resource adjustment (App. Br. 1 O); (iii) the Examiner arbitrarily splits the limitation to support a finding that the combination of references teaches the disputed limitation (App. Br. 7-11); and (iv) the Examiner mischaracterizes the disclosure of the references (App. Br. 11-13; Reply Br. 5-8). As discussed infra, we are unpersuaded of Examiner error. Wolff is generally directed to load rebalancing in a network. Wolff, Abstract. Wolff teaches rebalancing, in response to an indication that (for example) a node is overloaded, such that a network/processing path is remapped through a plurality of nodes to a resource. Wolff, col. 2, 11. 41--45. Wolff further discloses "[ r ]esources can include, but are not limited to, computers, memory devices, imaging devices, printers, and data sets." Wolff, col. 2, 11. 48-51. Wolff further teaches the disclosed system may "remove the bottlenecks and disadvantages associated with current distributed networks." Wolff, col. 2, 11. 25-27. The Examiner finds, and we agree, Wolff teaches "adjusting the number of resources based on the system work load, the ideal resource load, and a current number of resources." (Final Act. 3 (citing Wolff, col. 11, 11. 24--41, col. 34, 1. 64---col. 35, 1. 10); see also Ans. 3--4 (citing Wolff, col. 19, 1. 50-col. 20, 1. 9). 4 Appeal 2015-001837 Application 12/984,938 Figures 7 A and 7B (referred to in the section identified by the Examiner) are illustrative and are reproduced below: 120 118 120 118 . "' .... '. ~ .... " .. CLUSTER . " .. .. ~9.Q~? .. , "' Figure 7 A illustrates a network before passive client load rebalancing, and Figure 7B illustrates the network after passive client load rebalancing. Wolff col. 23, 11. 63---66. As illustrated, Figure 7 A shows a plurality of aware clients (102A) and a plurality of normal clients (IOOA). Wolff, col. 23, 1. 66-col. 24, 1. 1. If an overload condition is detected on Node 4 (104A) (e.g., a utilization threshold greaterthan 80% (see Wolff, col. 19, 11. 65---67)), the resources of the system are adjusted to add Node 3 to process communication from aware client 3 (path 702 is now path 704). See Wolff, Fig. 7B, col. 24, 11. 14--42. Thus, we agree with the Examiner that the client 5 Appeal 2015-001837 Application 12/984,938 load rebalance of Wolff teaches or suggests adjusting a number of available nodes (the claimed "resources"). See Ans. 6-7. Regarding Appellants' argument that the "ideal capacity" of Wolff is different than the claimed ideal resource load (i.e., Wolff functions differently than serving as a basis for resource number adjustment), we are unpersuaded of Examiner error because this argument is not responsive to the Examiner's rejection. The Examiner relies on Waclawsky, not Wolff, for determining at least one ideal resource load for at least one resource based on a threshold value for a first metric. Final Act. 2 (citing Waclawsky, col. 5, 1. 59-col. 6, 1. 9). Waclawsky is directed to monitoring the operation and activity of a network as compared to historical benchmarks for the network. Waclawsky, Abstract. If the current operating characteristic are "outside the bounds of normal behavior," Waclawsky teaches "[t]he expert system can perform network control routing changes, or close down applications, or allocate additional bandwidth as required." Id.; see also Waclawsky, col. 8, 11. 34-- 41. In rejecting claim 1, the Examiner finds, inter alia, Waclawsky teaches "determining at least one ideal resource load for at least one resource based on the threshold value for the first metric." Final Act. 2 (citing Waclawsky, col. 5, 1. 59-col. 6, 1. 9) (emphasis omitted). Additionally, the Examiner finds, and we agree, Waclawsky teaches adjusting parameters (e.g., tuning parameters of resources) in response to an indication the network needs correction or optimization. Final Act. 2 (citing Waclawsky, col 2, 11. 8-11, col. 8, 11. 34--42). 6 Appeal 2015-001837 Application 12/984,938 Additionally, we do not agree with Appellants that the Examiner arbitrarily split the disputed limitation. Rather, as the Examiner finds, and we agree, Waclawsky, as part of the disclosed expert system, teaches adjusting resources based on, inter alia, indications of network operation and Wolff teaches adjusting resources based on system work load, the ideal resource load, and a current number of resources. Final Act. 2-3; Ans. 2-8. Further, we find the Examiner has set forth articulated reasoning with rational underpinning in support of the proposed combination. Final Act. 3; see also Wolff, col. 2, 11. 24--51 (the disclosed system "remove[s] the bottlenecks and disadvantages associated with current distributed networks ... allow[ s] more efficient, robust communication between a plurality of clients"); Waclawsky, col. 3, 11. 19-29 (disclosed system is directed to "monitoring, analysis and control of the data communication network"). See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). As discussed supra, we do not agree with Appellants that the Examiner has mischaracterized the teachings of the references, individually or what the proposed combination teaches. In particular, Appellants contend "an adjustment to bandwidth, as disclosed in Waclawsky, is not the same as adjusting a number of resources." App. Br. 12. In addition, Appellants contend the Examiner erred in finding Wolff s "ideal capacity" corresponds to the claimed "ideal resource load." App. Br. 13. We do not find Appellants' contentions persuasive, at least because the Examiner relies on Wolff, not Waclawsky, to teach adjusting a number of resources and relies on Waclawsky, not Wolff, as determining at least one ideal resource load. See Final Act. 2-3. 7 Appeal 2015-001837 Application 12/984,938 For the reasons discussed supra, we are unpersuaded of Examiner error. Accordingly, we sustain the Examiner's rejection of independent claim 1 and, for similar reasons, the rejection of independent claim 20, which recites similar limitations and which was not argued separately. Additionally, we sustain the Examiner's rejection of dependent claims 2-11 and 21-30, which were not argued separately. See App. Br. 6-13, 18. Claims 31-42 Claim 31 recites, in part, "if at least a predetermined number of the resources are operating inefficiently, determining that the system has reached a performance bottleneck." Appellants argue Waclawsky, as relied upon by the Examiner, does not determine that the system has reached a bottleneck, or, that a predetermined number of resources are operating inefficiently. App. Br. 15-16; Reply Br. 8-11. Appellants assert "a bottleneck exists where further increase to the resources available to the system for scaling does not necessarily improve system performance." App. Br. 16. By contrast, Appellants contend Waclawsky's identification of a network delay in video traffic is not the same as a bottleneck because Waclawsky teaches the network delay may be alleviated by adding capacity or bandwidth. App. Br. 16. Appellants additionally assert there is no teaching in Waclawsky of a determination that a predetermined number of resources are operating inefficiently. Reply Br. 10. When construing claim terminology during prosecution before the Office, claims are to be given their broadest reasonable interpretation consistent with the specification, reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. 8 Appeal 2015-001837 Application 12/984,938 In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The Specification does not define a bottleneck, but rather recites: [D]etennining a tolerable value for a resource performance metric based on resource characteristics and resource load; measuring the resource performance metric; if the resource performance metric exceeds the tolerable value, determining that the resource is operating inefficiently; and if at least a predetermined number of the resources are operating inefficiently, determining that the system has reached a performance bottleneck. Spec. i-f 9. The Examiner finds, and we agree, Waclawsky teaches a bottleneck occurs when video streaming is degraded (i.e., operating inefficiently). Ans. 9-10 (citing Waclawsky, col. 14, 11. 37--47 and col. 14, 1. 52---col. 15, 1. 25). Further, we find Waclawsky's determination of any detection of degraded resource performance satisfies the limitation of "a predetermined number of resources are operating inefficiently." Similarly, Appellants assert Waclawsky fails to teach or suggest "if the actual system metric value gain is less than a set percentage of the estimated system metric value gain," determining that the system has reached a performance bottleneck, as recited in claim 37. App. Br. 17; Reply Br. 10-11. We are unpersuaded of Examiner error. As discussed above, Waclawsky teaches establishing a benchmark of system performance and when actual performance varies "outside the bounds of normal behavior" steps are taken to address the network performance. Waclawsky, Abstract; see also Final Act. 8 (citing Waclawsky, col. 5, 11. 13-30, col. 5, 1. 59---col. 6, 1. 9, col. 15, 11. 5-25). In other words, we find Waclawsky teaches or suggests determining a performance bottleneck is present is the actual 9 Appeal 2015-001837 Application 12/984,938 network performance (i.e., actual system metric value gain) is operating outside a range of normal performance variation, as established by benchmark performance data (i.e., less than a set percentage of the estimated system metric value gain). For the reasons discussed supra, we are unpersuaded of Examiner error. Accordingly, we sustain the Examiner's rejection of independent claim 31 and, for similar reasons, the rejection of independent claim 37, which recites similar limitations and which was not argued separately. Additionally, we sustain the Examiner's rejections of dependent claims 32- 36 and 38--42, which were not argued separately. See App. Br. 14--18. DECISION We affirm the Examiner's decision to reject claims 1-11 and 20--42. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 41.50(±). AFFIRMED 10 Copy with citationCopy as parenthetical citation