Ex Parte Little

Patent Trial and Appeal Board

Sep 20, 2016

13913107 (P.T.A.B. Sep. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/913,107 06/07/2013
14400 7590 09/20/2016
Patent Docket Administrator
LOWENSTEIN SANDLER LLP
65 Livingston A venue
Roseland, NJ 07068
FIRST NAMED INVENTOR
Mark Cameron Little
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.
05220-1690 (P0257C) 4227
EXAMINER
KRAFT, SHIH-WEI
ART UNIT PAPER NUMBER
2194
MAILDATE DELIVERY MODE
09/20/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK CAMERON LITTLE
Appeal2015-006839
Application 13/913,107
Technology Center 2100
Before ALLEN R. MacDONALD, JOHN P. PINKERTON, and
GARTH D. BAER, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals 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-in part.
1 The real party in interest identified by Appellant is the assignee, Red Hat,
Inc. Appeal Br. 3.
Appeal2015-006839
Application 13/913,107
STATEMENT OF THE CASE
Introduction
Appellant's described and claimed invention relates generally to
monitoring dependencies in a distributed computing system. Spec i-f 20.
Claim 1 is representative and reads as follows (with the disputed
limitation emphasized):
1. A computer implemented method, comprising:
recording, by a processor, statistics regarding invocation
of a second component of a distributed computing system by a
first component of the distributed computing system;
determining, by the processor, a dependency between the
first component and the second component based on the
statistics;
determining, by the processor, a dependency rating for the
dependency based on the statistics;
migrating the first component from a first location to a
second different location; and
responsive to determining that the dependency rating for
the dependency exceeds a dependency threshold, migrating the
second component to the second location.
Appeal Br. 17 (Claims App.).
References
Kampe et al. US 2002/0007468 Al Jan. 17,2002
Halpern US 2003/0182427 Al Sept. 25, 2003
Agarwal et al. US 2005/0172306 Al Aug. 4, 2005
Victoria et al. US 2005/0235248 Al Oct. 20, 2005
Oztekin et al. US 2007/0233671 Al Oct. 4, 2007
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Application 13/913,107
Re} ections on Appeal2
1. Claims 1, 2, 6, 8-10, 14, 16, 17, and 20 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over
Agarwal, in view of Halpern, and further in view of
Victoria.
2. Claims 3-5, 11-13, 18, and 19 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Agarwal,
in view of Halpern and Victoria, and further in view of
Oztekin.
3. Claims 7 and 15 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Agarwal, in view of Halpern
and Victoria, and further in view of Kampe.
Issues on Appeal
Appellant's arguments in the Appeal Brief3 and Reply Brief present us
with the following issues:
1. Does the combination of Agarwal, Halpern, and Victoria
teach or suggest "responsive to determining that the
dependency rating for the dependency exceeds a
dependency threshold, migrating the second component
2 The Examiner also rejected claims 1-20 on the ground of non-statutory
double patenting, but withdrew the rejection in the Examiner's Answer in
view of Appellant's filing of a terminal disclaimer. Final Act. 4--7; Ans. 27.
Therefore, this rejection is not before us.
3 Our Decision refers to the Final Office Action (mailed July 22, 2014,
"Final Act."), Appellant's Appeal Brief (filed Dec. 19, 2014, "Appeal Br.")
and Reply Brief (filed July 14, 2015, "Reply Br."), the Examiner's Answer
(mailed May 15, 2015, "Ans."), and the original Specification (filed June 7,
2013, "Spec.").
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Application 13/913,107
to the second location," as recited in claim 1, and
similarly recited in claims 9 and 17?
2. Does the combination of Agarwal, Halpern, Victoria, and
Oztekin teach or suggest "applying an atomic decay to
the dependency rating, wherein the atomic decay reduces
a value of the dependency rating over time according to a
specified atomic decay factor," as recited in claims 3 and
11, and similarly recited in claim 18?
3. Does the combination of Agarwal, Halpern, Victoria, and
Oztekin teach or suggest "resetting the dependency rating
each time the first component invokes the second
component," as recited in claims 4 and 12?
4. Does the combination of Agarwal, Halpern, Victoria, and
Oztekin teach or suggest "wherein the atomic decay
reduces the value of the dependency rating over time
according to a first atomic decay factor if the dependency
includes a first service and according to a second atomic
decay factor if the dependency includes a second
service," as recited in claims 5 and 19?
ANALYSIS
Issue 1
Appellant argues Halpern does not teach or suggest determining any
dependency between services or performing migration based on such a
determination. Appeal Br. 8; Reply Br. 10. Appellant further argues
Victoria only teaches using a confidence value assigned to a dependency to
color code the dependency within a displayed deployment plan, and does not
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Application 13/913,107
teach using the confidence value to determine which service to migrate.
Appeal Br. 9; Reply Br. 11. Appellant also argues Victoria's confidence
value does not teach the claimed "dependency rating" because Victoria's
confidence value represents a likelihood a dependency exists, whereas, in
contrast, the claimed "dependency rating" is assigned to an identified
existing dependency, and the claimed "dependency rating" denotes the
degree (i.e., strength) of the existing dependency. Appeal Br. 10; Reply
Br. 12. Thus, as argued by Appellant, the Final Office Action fails to
establish a prima facie case of obviousness with regard to claim 1. Appeal
Br. 10-11; Reply Br. 17-19.
Regarding Appellant's arguments that Halpern fails to teach or
suggest determining a dependency between services and that Victoria fails to
teach or suggest migrating services, we do not find these arguments
persuasive. It is well established that one cannot show non-obviousness by
attacking references individually where the rejection is based upon the
teachings of a combination of references. See In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986); see also In re Keller 642 F.2d 413, 425 (CCPA
1981) ("[T]he test is what the combined teachings of the references would
have suggested to those of ordinary skill in the art."). Appellant's argument
that Halpern fails to teach or suggest determining a dependency between
services is unpersuasive because the Examiner relied upon Victoria for
teaching the feature of determining a dependency between services, and
Appellant has not successfully rebutted the Examiner's finding. See Final
Act. 10-11; Ans. 29-30. Likewise, Appellant's argument that Victoria fails
to teach or suggest migrating services is unpersuasive because the Examiner
relied upon Halpern for teaching the feature of migrating services, and
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Appellant has not successfully rebutted the Examiner's finding. See Final
Act. 11; Ans. 30-31.
Regarding Appellant's argument that Victoria's confidence value does
not teach the claimed "dependency rating," we do not find this argument
persuasive either. Appellant's argument that the claimed "dependency
rating" is assigned to an identified existing dependency and denotes the
degree of the identified dependency is not commensurate with the scope of
claim 1 because it does not include language limiting the claimed
"dependency rating" to Appellant's definition, and, thus, claim 1 is broader
than Appellant's interpretation of the claim. See SuperGuide Corp. v.
DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) ("Though
understanding the claim language may be aided by the explanations
contained in the written description, it is important not to import into claim
limitations that are not a part of the claim."). We also note that claim 3,
which depends from claim 1, recites the limitation "wherein the dependency
rating identifies a degree of dependency." While this limitation is more
aligned with Appellant's argument, it is not recited in claim 1. This further
supports the conclusion that "dependency rating," as recited in claim 1, is
not limited to Appellant's definition. 4 See Phillips v. AWH Corp., 415 F.3d
1303, 1315 (Fed. Cir. 2005) (stating that, under the doctrine of claim
differentiation, the presence of a dependent claim that adds a particular
4 Although it is not necessary to reach this issue to sustain the Examiner's
rejection, assuming arguendo that the claimed "dependency rating" is
limited to Appellant's definition, we conclude Victoria's confidence value
still teaches or suggests the claimed "dependency rating" because Victoria
teaches the confidence value indicates a likelihood a dependent component
has a dependency on another component, and a likelihood of dependency
suggests a degree of dependency. See Victoria i-f 116.
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Application 13/913,107
limitation gives rise to a presumption that the limitation is not present in the
independent claim).
Regarding Appellant's argument that the Final Office Action failed to
establish that the claim limitation "responsive to determining that the
dependency rating for the dependency exceeds a dependency threshold,
migrating the second component to the second location," as recited in claim
1, would have been obvious to one of ordinary skill in the art, we also do not
find this argument persuasive. When considering obviousness, the Supreme
Court made clear that "the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ." KSR Int'! Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007). We agree with the Examiner that it would have been
obvious to one of ordinary skill in the art, at the time of the claimed
invention, to combine the teachings of Agarwal, Halpern, and Victoria in
order to modify Agarwal' s system of identifying component dependencies
(including dependency confidence values) in a distributed computing system
to include the functionality of migrating services (as taught by Halpern)
based on a determination that a dependency confidence value is greater than
a threshold (as taught by Victoria). See Final Act. 10-12; Ans. 29-31. Such
a modification is merely a substitution of one known functionality for
another that does not do more than yield predictable results. See KSR 550
U.S. at 416 ("[W]hen a patent claims a structure already known in the prior
art that is altered by the mere substitution of one element for another known
in the field, the combination must do more than yield a predictable result.").
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Accordingly, we sustain the Examiner's rejection of independent
claims 1, 9, and 17 under 35 U.S.C. § 103(a) based on the combination of
Agarwal, Halpern, and Victoria. We further sustain the Examiner's rejection
of dependent claims 2, 6-8, 10, 14--16, and 20, which are not argued
separately.
Issue 2
Appellant argues Oztekin is not analogous to Agarwal because
Agarwal is directed to determining dependencies between services in a
distributed computing system, whereas, in contrast, Oztekin is directed to a
web search engine that ranks search results based on one or more groups that
a searcher belongs to. Appeal Br. 12; Reply Br. 22-23. Appellant further
argues Oztekin fails to teach or suggest applying an atomic decay to any
kind of dependency rating, and specifically fails to teach or suggest applying
an atomic decay to a dependency rating between services in a distributed
computing system. Appeal Br. 13; Reply Br. 26.
We do not find these arguments persuasive. A prior art reference is
analogous to an application if: (1) it is from the same field of endeavor as the
application, regardless of the problem addressed, or (2) if the reference is not
within the field of the inventor's endeavor, it is nonetheless reasonably
pertinent to the particular problem with which the inventor is involved. In re
Bigio, 381F.3d1320, 1325 (Fed. Cir. 2004). As indicated, these tests are in
the alternative, i.e., a finding of either is sufficient. See In re Oetiker, 977
F.2d 1443, 1447 (Fed. Cir. 1992). Appellant's argument that Oztekin is not
analogous art is unpersuasive, as we agree with the Examiner that Oztekin is
analogous art because Oztekin is in the same field of endeavor as
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Appellant's claimed invention (i.e., distributed computer systems). 5 See
Ans. 39--41 (citing Oztekin i-f 10).
Regarding Appellant's argument that Oztekin fails to teach or suggest
applying an atomic decay to any kind of dependency rating, we find this
argument unpersuasive as well. Appellant's argument attacks Oztekin
individually rather than the cited combination of references, as the Examiner
relied upon Agarwal for teaching the feature of a dependency rating, and
Appellant has not successfully rebutted the Examiner's finding. See Final
Act. 23; Ans. 41--42. Accordingly, we sustain the Examiner's rejection of
claims 3, 11, and 18 under 35 U.S.C. § 103(a).
Issue 3
Appellant argues Agarwal fails to teach or suggest resetting a
dependency rating under any circumstances, and thus, also fails to teach or
suggest resetting a dependency rating each time a first component invokes a
second component. Appeal Br. 14.
We find this argument persuasive, as we agree with Appellant that
Agarwal fails to teach or suggest resetting a dependency rating. We agree
with the Examiner that Agarwal teaches changing a dependency rating via
updating an overall dependency graph. See Final Act. 24-25 (citing
5 Although not necessary to reach this issue to sustain the Examiner's
rejection, we also find that Oztekin is reasonably pertinent to the particular
problem with which the Appellant is involved. More specifically,
Appellant's specification discloses it is beneficial to track dependencies
between services, and it is also beneficial to more heavily weight
dependencies with more recent invocations, in contrast to older
dependencies. See Spec. i-fi-1 43, 52. As Oztekin similarly teaches that it is
beneficial, when rating search results, to more heavily weight newer group
profile information, in contrast to older group profile information, Oztekin is
reasonably pertinent to Applicant's claimed invention. See Oztekin i-f 42.
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Agarwal if 118). However, we do not agree with the Examiner that an
interpretation of "resetting the dependency rating" as merely changing the
dependency rating to any value is reasonable. Ans. 44--45. The plain and
ordinary meaning of resetting a value is not merely changing the value to
any value, but changing the value back to an original value. 6 While the
Examiner is correct that the claims do not define an original value, this does
not lead to the conclusion that changing a value to any other value
constitutes changing the value back to an original value. Further, as
described above, Agarwal fails to teach or suggest changing a value of a
dependency rating to an original value. Thus, we do not sustain the
Examiner's rejection of claims 4 and 12 under 35 U.S.C. § 103(a).
Issue 4
Appellant argues the cited combination of references fails to teach or
suggest "wherein the atomic decay reduces the value of the dependency
rating over time according to a first atomic decay factor if the dependency
includes a first service and according to a second atomic decay factor if the
dependency includes a second service," as recited in claims 5 and 19
because none of the cited references describes using a first atomic decay
factor under first circumstances and a second atomic decay factor under
second circumstances. Appeal Br. 15-16.
We do not find this argument persuasive. We agree with the
Examiner that Agarwal teaches a dependency relationship between two
components (i.e., services). Ans. 46 (citing Agarwal if 20). Thus, we agree
6 Merriam-Webster defines "reset" as "to move (something) back to an
original place or position." MERRIAM-WEBSTER DICTIONARY,
http://www.merriam-webster.com/ dictionary/reset (last visited Sept. 14,
2016).
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that Agarwal teaches the claimed "first service" and "second service." We
also agree with the Examiner that Oztekin teaches weighting dated group
profile information based on a pre-defined scaling factor, where the
weighting is associated with multiple half-lives or other time modulations.
Ans. 47--48 (citing Oztekin i-fi-142--43). Thus, we also agree that Oztekin
teaches or suggests the claimed "first atomic decay factor" and the "second
atomic decay factor." We further agree with the Examiner that it would
have been obvious for a person of ordinary skill in the art, at the time of the
claimed invention, to combine the teachings of Agarwal and Oztekin (as
well as the teaching of the other cited references), as the combination yields
no more than predictable results. Ans. 48. Therefore, we sustain the
Examiner's rejection of claims 5 and 19 under 35 U.S.C. § 103(a).
DECISION
\Ve affirm the Examiner's decision rejecting claims 1-3, 5-11, and
13-20 under 35 U.S.C. § 103(a).
We reverse the Examiner's decision rejecting claims 4 and 12 under
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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