Ex Parte Lindquist et al

Board of Patent Appeals and Interferences

Apr 30, 2009

10170300 (B.P.A.I. Apr. 30, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte DAVID B. LINDQUIST,
BALA RAJARAMAN,
YIH-SHIN TAN,
and BRAD B. TOPOL
____________
Appeal 2007-1086
Application 10/170,300
Technology Center 2100
____________
Decided:1 May 1, 2009
____________
Before LEE E. BARRETT, MAHSHID D. SAADAT, and
ST. JOHN COURTENAY III, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from the final
rejection of claims 1-14. We have jurisdiction pursuant to 35 U.S.C. § 6(b).
We reverse.

1 The two-month time period for filing an appeal or commencing a
civil action, as recited in 37 C.F.R. § 1.304, begins to run from the decided
date shown on this page of the decision. The time period does not run from
the Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE
The invention
The invention is directed to a computing services grid, method, and
machine readable storage for routing/binding service requests based on
quality of service (QoS) characteristics associated with a requestor of the
service request. Upon receiving a service request, a grid routing component
is invoked to identify a suitable service instance. "In particular, based upon
either real-time or pre-selected SLA [service level agreement] level
specifications, the grid routing component 140 can select a suitable service
instance 150 to satisfy the service request according to the responsiveness
and reliability required by the terms of an associated SLA." Spec. 9:17-21.
The terms "grid" and "service" are discussed, for example, in the article by
Ian Foster et al., The Physiology of the Grid,
(search using
title) ) (see Spec. 3:12-14).

The claims
Claim 1 is reproduced below:
1. A computing services grid comprising:
a service desk coupled to a plurality of service instances, said
service instances conforming to a common service interface; and,
a routing component disposed in the service grid, said routing
component routing individual service requests to individual ones of
said service instances, wherein
the individual ones of said service instances to which the
individual service requests are routed are selected based upon a
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specification of quality of service (QoS) characteristics associated
with a requestor of the service request.

The references

Choquier 5,951,694 Sep. 14, 1999

Harry Newton, Newton's Telecom Dictionary (18th ed. Feb. 2002),
pages 603-604 (definition of "Quality Of Service (QoS)").

The rejection
Claims 1-14 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Choquier.

Claim groupings
Appellants state that claims 3-7, 9-11, 13, and 14 stand or fall together
with independent claim 1, and claims 8 and 12 stand or fall together with
dependent claim 2 (Br. 3). However, claim 3 depends on claim 2, claims 9
and 10 depend on claim 8, and claims 13 and 14 depend on claim 12.
Therefore, we assume that claims 4-7 and 11 stand or fall together with
claim 1, and claims 3, 9, 10, 13, and 14 stand or fall together with claim 2.

ISSUE
Appellants argue (Br. 4) that each of claims 1, 7, and 11 contain
limitations comparable to the following limitation from claim 1, which is not
taught or suggested by Choquier:
the individual ones of said service instances to which the
individual service requests are routed are selected based upon a
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specification of quality of service (QoS) characteristics associated
with a requestor of the service request.

It is admitted that Choquier describes "the individual ones of said
service instances to which the individual service requests are routed are
selected based upon a specification of quality of service (QoS)
characteristics" in claim 1. Thus, the sole issue is: Would one of ordinary
skill in the art have been motivated to route the individual service requests in
Choquier based on quality of service (QoS) characteristics "associated with a
requestor of the service request"?

PRINCIPLES OF LAW
"[T]he best defense against the subtle but powerful attraction of a
hindsight-based obviousness analysis is rigorous application of the
requirement for a showing of the teaching or motivation to combine prior art
references." In re Dembiczak, 175 F.3d 994, 999 (Fed. Cir. 1999). The
motivation, suggestion or teaching may come explicitly from statements in
the prior art, the knowledge of one of ordinary skill in the art, or, in some
cases the nature of the problem to be solved. Id. "Even when obviousness is
based on a single prior art reference, there must be a showing of a suggestion
or motivation to modify the teachings of that reference." In re Kotzab,
217 F.3d 1365, 1370 (Fed. Cir. 2000).
The fact that the subject matter of a reference could be modified to
produce the claimed subject matter still requires a suggestion or motivation.
See In re Mills, 916 F.2d 680, 682 (Fed. Cir. 1990) ("While Mathis'
apparatus may be capable of being modified to run the way Mills' apparatus
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is claimed, there must be a suggestion or motivation in the reference to do
so."); In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) ("The mere fact
that the prior art may be modified in the manner suggested by the Examiner
does not make the modification obvious unless the prior art suggested the
desirability of the modification.").

ANALYSIS
The analysis may be most easily understood by looking at the
teachings of Choquier and the rejection and arguments step by step.
Choquier is directed to an on-line services network. Gateway
microcomputers receive service requests over a WAN from client
microcomputers operated by end users. Upon receiving a request to open a
service, the gateway microcomputers access a periodically-updated service
map to locate the application servers running the corresponding service
applications and then apply a load balancing method to select an application
server having a relatively low processing load. See Abstract.
Choquier describes a dynamic load balancing method in connection
with Figure 6 that is performed when a gateway 126 receives an "open"
request from a client-user (col. 13, ll. 56-58), where an open request is a
request to open services (col. 13, ll. 21-22). Figure 7 describes the preferred
load balancing method which selects the server 120 which most recently had
the highest available CPU processing power (col. 15, ll. 10-12). The
available CPU processing power (AVAILABLE CPU) is calculated for a
server 120 by multiplying the server's CPU INDEX by the server's FREE
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CPU (col. 15, ll. 15-19) and "the server with the highest AVAILABLE CPU
is selected to handle the service request" (col. 15, ll. 21-22).
The Examiner finds that this routing of open requests based on the
highest available CPU processing power corresponds to "individual service
requests are routed are selected based upon a specification of quality of
service (QoS) characteristic," where the QoS characteristic is the CPU with
the highest available processing power. Appellants do not disagree. QoS
does not have a rigid definition, but depends on the network and type of data
being sent (analog voice, digital voice, voice over IP, packet, etc.), so we
accept the Examiner's finding. The Examiner recognizes that Choquier fails
to explicitly disclose that routing selection is based on a QoS characteristic
"associated with a requestor of the service request." This finding of the
difference is correct: the CPU with the highest available CPU processing
power is selected by the gateway 126 and is not "associated with a requestor
of the service request."
The Examiner finds that Choquier discloses a specification of quality
of service (QoS) characteristics "associated with a requestor of a service
request" at column 20, line 61 through column 21, line 2, where the user
specification of throughput priorities is a quality of service characteristic
associated with a requester.
Appellants argue that the Examiner has overreached when describing
Choquier at column 20, line 61 to column 21, line 2, as teaching "a quality
of service characteristic associated with a requestor" (Br. 5). It is argued
that this "passage of Choquier does not support the broad teaching of 'a
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quality of service characteristic associated with a requestor'" (id.), but only
teaches predetermined throughput priorities (id.). It is argued that
"[a]lthough the 'throughput priorities' may be recognized by one having
ordinary skill in the art as an example of the claimed quality of service
characteristic, this recognition would be based upon hindsight using
Appellants' disclosure, not upon the actual teachings of Choquier" (id.).
Appellants argue that the Examiner confuses the genus-species situation
where a very specific disclosure (a species) identically discloses a claimed
generic feature (the genus), but "this specific disclosure does not teach the
genus" (Reply Br. 2).
Choquier describes that different types of on-line services tend to have
different throughput and/or latency demands, e.g., an on-line interactive
video game service will require a greater throughput for satisfactory
operations than a mail service (col. 20, ll. 32-36). Choquier describes that it
is desirable to implement a service priority scheme, whereby different
services are allocated different amounts of the available WAN bandwidth.
The service priority scheme may additionally specify minimum throughput
requirements (col. 20, ll. 47-54). The service priority table can be stored in a
service priority table 1220 which contains priority levels (in the form of
maximum segment lengths) for each on-line service (Fig. 12; col. 20,
ll. 40-47) or, "[a]lternatively, the throughput priorities could be provided by
the service applications, eliminating the need for the table 1220" (col. 20,
l. 63-65). The throughput priorities are preferably fixed, but "client
applications may be written to allow end users to override the predetermined
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throughput priorities" (col. 20, l. 67 to col. 21, l. 2). Choquier describes that
because throughput demands for client-to-server data transfers of a service
may differ significantly from throughput demands for server-to-client data
transfers for the same service, it may desirable to use a first set of bandwidth
allocations for client-to-gateway message traffic and a second set of
bandwidth allocations for gateway-to-client message traffic, which may be
accomplished by two priority levels for each service (col. 21, ll. 3-12).
Appellants admit that "throughput priorities" are an example of "a
specification of quality of service (QoS) characteristics associated with a
requestor of the service request." Since throughput priorities allocate
amounts of the available WAN bandwidth, this guarantees a higher quality
of service to services with a higher priority. Appellants' argument that
Choquier only teaches "predetermined" throughput priorities is in error
because Choquier clearly teaches that end users may override predetermined
priorities, which means that throughput priorities may be specified by the
end user (e.g., the service requestor). Appellants' argument that one skilled
in the art would only recognize throughput priority as a quality of service
characteristic in hindsight is not persuasive because it is sufficient for
purposes of the rejection that it is a quality of service characteristic.
Appellants' genus-species argument (Reply Br. 2) that disclosure of a
species of quality of service characteristics (throughput priorities) does not
teach the genus (quality of service characteristics in general) is not
persuasive because the genus limitation in the claims is met by any species.

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The proposed modification and motivation therefor
The Examiner recognizes that the "throughput priority" specified by a
service requester is not used to select a particular service instance to process
the service request. The throughput priority is only used to allocate
bandwidth between the client and the gateway. Thus, we come to the
proposed modification and the motivation for the modification. The
Examiner concludes that it would have been obvious to use the requestor-
specified quality of service (QoS) characteristic (throughput priority) in the
routing of requests in Choquier "because Choquier discloses a need to
balance the load on CPUs while taking into account the types of service and
the amount of load and bandwidth each instance of the service will result in
and require (Choquier, col. 15, 27-38)" (3d Office action 4). The Examiner
further finds that Choquier discloses priority tables to allow for bandwidth
distribution and that "the end user can set these bandwidth quality of service
characteristics (Choquier, col. 20, line 33 through col. 21, line 2)" (id.) and
concludes that it would have been obvious "to provide a similar mechanism
in the routing of service requests of Choquier to allow for similar control of
processing priority" (id. at 4-5) because "the routing must also take into
account these same priority concerns when distributing loads (Choquier,
col. 15, lines 27-33)" (id. at 5).
Appellants argue that the Examiner's analysis fails to explain why one
of ordinary skill in the art would have modified Choquier based on
Choquier's own suggestions (Br. 6). Appellants presume that the Examiner,
"intends to assert that this modification solves the problem identified within
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column 15, lines 27-33 of Choquier" (id. at 7), but note that Choquier
already discloses a solution to the problem and the Examiner has not
explained why one skilled in the art would "ignore the explicit teachings of
Choquier as to how to solve a described problem so as to solve the described
problem in a manner not explicitly taught by Choquier" (id.). It is argued
that Choquier already teaches a proposed solution to the problem identified
in column 15, lines 27-33, and "[s]ince the Examiner's solution to this
problem (i.e., the proposed modification) is substantially different that [sic]
Choquier's proposed solution, Choquier teaches away from the claimed
invention" (Br. 8).
The Examiner responds that Choquier discloses that "alternative load
balancing is possible" (Ans. 10), that end users can modify throughput
priorities which "shows a desire inherent in Choquier to allow for unequal,
user defined, quality of service priorities" (id. at 11).
It is clear that the Examiner proposes an alternative load balancing
scheme and not a solution to the problem at column 15, lines 27-33. The
Examiner refers to column 15 for its teaching that services have fixed
capacities. Thus, the arguments about teaching away are not persuasive.
Appellants argue that Choquier would not lead to the claimed
invention (Br. 7). It is argued that the throughput priorities of Choquier are
directed to allocating different amounts of an available WAN bandwidth, but
the proposed modification is to a load balancing method for selecting a
server (id.). The Examiner disagrees (Ans. 11), which Appellants argue
does not address the argument (Reply Br. 11).
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This argument raises the ultimate question of whether the Examiner
erred in finding motivation in Choquier or in the knowledge of one of
ordinary skill in the art reading Choquier to modify the load balancing
technique in the manner proposed by the Examiner. We agree with
Appellants that there is not. Under KSR Int'l Co. v. Teleflex Inc., 127 S. Ct.
1727, 1741 (2007), we do not require an express teaching, suggestion, or
motivation in Choquier itself, but there must be some objective evidence that
can be reviewed. The Examiner has not made matters easier by relying on a
single reference that does not mention quality of service (QoS) or service
level agreements (SLAs2). The fact that the subject matter of a reference
could be modified to produce the claimed subject matter is not sufficient.
The throughput priorities (an example of a quality of service characteristic)
chosen by the end user in Choquier allocate different amounts of an
available WAN bandwidth between client and gateway to different services,
but have nothing to do with routing of service requests from the gateway to a
server to achieve load balancing. Therefore, allocating bandwidth between
the client and gateway based on user priorities does not suggest modifying
the load balancing scheme to route a client to a service. Moreover, it is

2 A service level agreement (SLA) is defined as: "A contract between
the provider and the user that specifies the level of service expected during
its term. SLAs are used by vendors and customers as well as internally by
IT shops and their end users. They can specify bandwidth availability,
response times for routine and ad hoc queries, response time for problem
resolution (network down, machine failure, etc.) as well as attitudes and
consideration of the technical staff." < http://www.techweb.com/
encyclopedia?term=SLA> (last downloaded March 31, 2009).

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unclear how throughput priorities used to allocated bandwidth would be
used to route service requests without further modification, i.e., that the
proposed modification would produce the claimed invention. The Examiner
may be implicitly relying on the description of a "minimum throughput
requirement" in Choquier (col. 20, ll. 47), i.e., that perhaps the load
balancing scheme could be modified to select the service instance with
sufficient minimum throughput between client and service, but this is not
stated by the Examiner and is not described or suggested by Choquier.

CONCLUSION
We conclude that Appellants have established that the Examiner erred
in concluding that one of ordinary skill in the art have been motivated to
route the individual service requests in Choquier based on quality of service
(QoS) characteristics "associated with a requestor of the service request."
The rejection of independent claims 1, 7, and 11, and dependent claims 4-6,
is reversed. The Examiner's obviousness reasoning with respect to claim 2
does not cure the deficiencies of the rejection of claim 1. Accordingly, the
rejection of claims 2, 3, 8-10, and 12-14 is reversed.

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In summary, the rejection of claims 1-14 under 35 U.S.C. § 103(a) is
reversed.

REVERSED

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