Ex Parte Lindquist et alDownload PDFBoard of Patent Appeals and InterferencesApr 30, 200910170300 (B.P.A.I. Apr. 30, 2009) Copy Citation 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). Appeal 2007-1086 Application 10/170,300 2 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 Appeal 2007-1086 Application 10/170,300 3 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 Appeal 2007-1086 Application 10/170,300 4 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 Appeal 2007-1086 Application 10/170,300 5 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 Appeal 2007-1086 Application 10/170,300 6 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 Appeal 2007-1086 Application 10/170,300 7 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 Appeal 2007-1086 Application 10/170,300 8 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. Appeal 2007-1086 Application 10/170,300 9 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 Appeal 2007-1086 Application 10/170,300 10 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). Appeal 2007-1086 Application 10/170,300 11 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). Appeal 2007-1086 Application 10/170,300 12 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. Appeal 2007-1086 Application 10/170,300 13 In summary, the rejection of claims 1-14 under 35 U.S.C. § 103(a) is reversed. REVERSED rwk CAREY, RODRIGUEZ, GREENBERG & PAUL, LLP STEVEN M. GREENBERG 950 PENINSULA CORPORATE CIRCLE SUITE 3020 BOCA RATON, FL 33487 Copy with citationCopy as parenthetical citation