13756193 (P.T.A.B. Aug. 13, 2018)

Ex Parte Macbeath et al

Patent Trial and Appeal BoardAug 13, 2018

13756193 (P.T.A.B. Aug. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/756, 193 01/31/2013 Keith Stewart Rattray Macbeath 56436 7590 08/15/2018 Hewlett Packard Enterprise 3404 E. Harmony Road Mail Stop 79 Fort Collins, CO 80528 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. 83138527 7875 EXAMINER GOLDBERG, IV AN R ART UNIT PAPER NUMBER 3624 NOTIFICATION DATE DELIVERY MODE 08/15/2018 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): hpe.ip.mail@hpe.com chris.mania@hpe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KEITH STEWART RATTRAY MACBEA TH and EMIL S. FRISENDAL Appeal2016-005511 Application 13/756,193 Technology Center 3600 Before JASON V. MORGAN, JOSEPH P. LENTIVECH, and STEVEN M. AMUNDSON, Administrative Patent Judges. AMUNDSON, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 seek our review under 35 U.S.C. Â§ 134(a) from a final rejection of claims 1-20, i.e., all pending claims. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 Appellants identify the real party in interest as Hewlett Packard Enterprise Development LP. App. Br. 1. Appeal2016-005511 Application 13/756,193 STATEMENT OF THE CASE The Invention According to the Specification, the invention concerns "dynamic profitability management for cloud service providers that can enable automatic price adjustment recommendations for cloud service offerings to enhance profitability based upon input and consideration of a variety of parameters." Spec. ,r 5, Abstract. 2 The Specification explains that "[s]uch parameters can be included in input profiles such as, for example, current workloads per service and/or per customer, forecasted workloads, current and/or forecasted production costs, customer behavioral patterns, [and] competitor/market prices per workload unit." Id. ,r 5. Exemplary Claims Independent claims 1 and 7 exemplify the claims at issue and read as follows (with formatting added for clarity): 1. A method of dynamic profitability management for cloud service providers, comprising: utilizing a processing resource to execute instructions stored on a non-transitory medium for: generating input profiles, comprising: generating a market price profile per workload unit, generating the market price including analyzing a cost of a cloud service application as a function of a workload and pricing by a cloud service provider based on load tests run in a cloud service environment; 2 This decision uses the following abbreviations: "Spec." for the Specification, filed January 31, 2013; "Final Act." for the Final Office Action, mailed July 9, 2015; "App. Br." for the Appeal Brief, filed December 8, 2015; "Ans." for the Examiner's Answer, mailed April 15, 2016; and "Reply Br." for the Reply Brief, filed April 29, 2016. 2 Appeal2016-005511 Application 13/756,193 generating a first behavioral profile per customer based on a history of customer behavior in response to a number of price adjustments; generating a scheduled workload profile per offered cloud service based on workloads at providers and/or sub-providers of the offered cloud service; and generating a workload capacity profile per cloud service placement option based on ability to handle particular workloads at a plurality of cloud service placement options; and recommending adjustment of prices for a number of cloud services provided by the cloud service provider to manage profitability based upon analyzing input of the generated input profiles. 7. A non-transitory machine-readable medium storing a set of instructions that, when executed, cause a processing resource to: generate input profiles, comprising: generate a market price profile per workload unit that includes determination of a demand pattern by simulation of various workloads and various numbers of users in a cloud environment, wherein the demand pattern is automatically analyzed for generation of the market price profile per workload unit; generate a behavioral profile per customer based on a history of customer behavior in response to a change in execution resources of cloud service offerings; generate a scheduled workload profile per offered cloud service based on workloads at providers and/ or sub-providers of the offered cloud service; and generate a workload capacity profile per cloud service placement option based on ability to handle particular workloads at a plurality of cloud service placement options; and 3 Appeal2016-005511 Application 13/756,193 recommend adjustment of prices for a number of cloud services provided by a cloud service provider to dynamically manage profitability for the cloud service provider based upon analysis of input of the generated historical and projected input profiles. App. Br. Claims App'x i-iii. The Prior Art Supporting the Rejections on Appeal As evidence ofunpatentability under 35 U.S.C. Â§ I03(a), the Examiner relies on the following prior art: Stienhans et al. ("Stienhans") Weinman US 2010/0042720 Al Feb. 18, 2010 US 2012/0016721 Al Jan. 19, 2012 Ming Mao et al., Cloud Auto-Scaling with Deadline and Budget Constraints, 11 TH IEEE/ ACM INTERNATIONAL CONFERENCE ON GRID COMPUTING 41--48 (2010) ("Mao") Di Niu et al., Pricing Cloud Bandwidth Reservations Under Demand Uncertainty, PROCEEDINGS OF THE 12TH ACM SIGMETRICS/PERFORMANCE JOINT INTERNATIONAL CONFERENCE ON MEASUREMENT AND MODELING OF COMPUTER SYSTEMS 151---62 (2012) ("Niu") The Re} ections on Appeal Claims 1-15 stand rejected under 35 U.S.C. Â§ 101 as directed to patent-ineligible subject matter. Final Act. 3-10. Claims 1---6, 16, and 17 stand rejected under 35 U.S.C. Â§ 112 ,r 2 as indefinite for failing to particularly point out and distinctly claim the subject matter regarded as the invention. 3 Final Act. 11-12. 3 The Leahy-Smith America Invents Act ("AIA"), Pub. L. No. 112-29, 125 Stat. 284 (2011), amended 35 U.S.C. Â§ 112, e.g., to renameÂ§ 112's subsections. Because Application 13/756,193 was filed before the AIA's effective date for applications, this decision refers to the pre-AIA version of Â§ 112. 4 Appeal2016-005511 Application 13/756,193 Claims 1-11 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Weinman and Niu. Final Act. 14--34. Claims 12-20 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Weinman, Niu, and Stienhans. Final Act. 34--49. Claims 2, 4--6, and 9 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Weinman, Niu, and Mao. Final Act. 49-55. ANALYSIS We have reviewed the rejections in light of Appellants' arguments that the Examiner erred. For the reasons explained below, we concur with the Examiner's conclusions concerning ineligibility under Â§ 101 and unpatentability underÂ§ 103(a) andÂ§ 112 ,r 2. Except as noted below, we adopt the Examiner's findings and reasoning in the Final Office Action and Answer. We add the following to address and emphasize specific findings and arguments. TheÂ§ 1 OJ Rejection of Claims 1-15 INTRODUCTION The Patent Act defines patent-eligible subject matter broadly: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 U.S.C. Â§ 101. In Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66, 70 (2012), and Alice Corp. v. CLS Bank International, 134 S. Ct. 2347, 2354 (2014), the Supreme Court explained that Â§ 101 "contains an important implicit exception" for laws of nature, natural phenomena, and abstract ideas. See Diamond v. 5 Appeal2016-005511 Application 13/756,193 Diehr, 450 U.S. 175, 185 (1981). In Mayo and Alice, the Court set forth a two-step analytical framework for evaluating patent-eligible subject matter: First, "determine whether the claims at issue are directed to" a patent- ineligible concept, such as an abstract idea. Alice, 134 S. Ct. at 2355. If so, "consider the elements of each claim both individually and 'as an ordered combination' to determine whether the additional elements" add enough to transform the "nature of the claim" into "significantly more" than a patent- ineligible concept. Id. at 2355, 2357 (quoting Mayo, 566 U.S. at 79). Step one in the Mayo/Alice framework involves looking at the "focus" of the claims at issue and their "character as a whole." Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). Step two involves the search for an "inventive concept." Alice, 134 S. Ct. at 2355. An "inventive concept" requires more than "well-understood, routine, conventional activity already engaged in" by the relevant community. Rapid Litig. Mgmt. Ltd. v. CellzDirect, Inc., 827 F.3d 1042, 1047 (Fed. Cir. 2016) (quoting Mayo, 566 U.S. at 79-80). But "an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces." BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016). Under step two, "an inventive concept must be evident in the claims." RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017). MAYO/ALICE STEP ONE The Examiner determines that the claims at issue are directed to an abstract idea, i.e., "recommending the adjustment of prices" and "a business plan of changing prices in response to various factors." Ans. 16; see Final Act. 4, 6, 8. The Examiner explains that: (1) the abstract idea constitutes a 6 Appeal2016-005511 Application 13/756,193 fundamental economic practice and (2) the claims include "limitations directed to mathematical correlations and to saving profiles or data structures as in Digitech." Ans. 16 (citing Digitech Image Techs., LLC v. Elecs.for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014)); see Final Act. 4, 6, 8-9 ( citing Digitech ). Appellants dispute that the claims are directed to a fundamental economic practice and mathematical correlations. App. Br. 20-21. In particular, Appellants argue that "the asserted abstract idea does not appear to include any mathematical algorithms, functions, or formulas." Id. at 21. Appellants also argue that the Examiner "failed to present any evidence to support" the analysis under Mayo/Alice step one. Id. at 20-21. Appellants' arguments do not persuade us of Examiner error because the claims concern "profitability management for cloud service providers" and resemble the patent-ineligible claims in OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359 (Fed. Cir. 2015). App. Br. Claims App'x i-v. Here, the claims manage profitability by analyzing input data in the form of profiles, e.g., by using supply-and-demand principles, and then producing output data in the form of recommended price adjustments. Id.; see, e.g., Spec. ,r,r 16-17, Fig. 1. In OIP Technologies, Federal Circuit explained that the claims recited: (1) testing a plurality of prices; (2) gathering statistics generated about how customers reacted to the offers testing the prices; (3) using that data to estimate outcomes (i.e. mapping the demand curve over time for a given product); and ( 4) automatically selecting and offering a new price based on the estimated outcome. OIP Techs., 788 F.3d at 1361. 7 Appeal2016-005511 Application 13/756,193 In OIP Technologies, the Federal Circuit decided that the claims were "directed to the concept of offer-based price optimization" and "similar to other 'fundamental economic concepts' found to be abstract ideas by the Supreme Court and this court." 788 F.3d at 1362. Just as the claims in OIP Technologies were directed to a fundamental economic concept concerning pricing, the claims here are directed to a fundamental economic concept concemmg pncmg. Also, as the Examiner notes, the claims here resemble the claims in Digitech. Final Act. 4, 6, 9; Ans. 16-17. There, the patent-ineligible method claims required: (1) "generating first data" describing a "transformation of color information content" in an imaging device; (2) "generating second data" describing a "transformation of spatial information content" in the imaging device; and (3) "combining said first and second data into the device profile." Digitech, 758 F.3d at 1350-51. Although the Examiner cited Digitech in the Final Office Action and the Answer, Appellants failed to address Digitech. See Final Act. 4, 6, 9; App. Br. 20-22; Ans. 16-17; Reply Br. 1--4. In addition, the claims here cover data collection, manipulation, and display. See App. Br. Claims App'x i-v; Final Act. 5, 7, 9; Ans. 16-17. The Federal Circuit has ruled that claims covering data collection, manipulation, and display were directed to abstract ideas. See, e.g., Secured Mail Sols. LLC v. Universal Wilde, Inc., 873 F.3d 905, 907---08, 910-11 (Fed. Cir. 2017); RecogniCorp, 855 F.3d at 1324, 1326-27; Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1339--41 (Fed. Cir. 2017); Elec. Power Grp., 830 F.3d at 1351-54; OIP Techs., 788 F.3d at 1361---63. "A process that start[s] with data, add[s] an algorithm, 8 Appeal2016-005511 Application 13/756,193 and end[s] with a new form of data [is] directed to an abstract idea." RecogniCorp, 855 F.3d at 1327 (citing Digitech, 758 F.3d at 1351). MAYO/ALICE STEP Two The Examiner determines that the additional elements in the claims individually and in combination amount to no more than ( 1) "an instruction to apply the [abstract] idea of changing the price" using a general-purpose computer for claim 1 and its dependent claims; (2) a "generic [storage] medium and processing resource" corresponding to a "general-purpose computer" for claim 7 and its dependent claims; and (3) a "generic memory, processing resource, and a graphical user interface" corresponding to a "general-purpose computer" for claim 12 and its dependent claims. Final Act. 4, 6-7, 9. The Examiner finds that the claims require only "generically recited computer components" that perform generic computer functions. Final Act. 5, 7, 9-10. Accordingly, the Examiner reasons that the claims lack an "inventive concept" sufficient to transform them into significantly more than a patent-ineligible abstract idea. Final Act. 4--7, 9-10; see also Ans. 16-17. Based on claim 1 's requirement for "generating the market price ... based on load tests run in a cloud service environment," Appellants assert that: (1) "it is perfectly clear that this subject matter is not merely 'an instruction to apply the [abstract] idea of changing the price"'; and (2) "claim 1 clearly includes significantly more than the asserted abstract idea." App. Br. 21-22. Appellants also assert that the Examiner "failed to provide any evidence or reasoning" to support the analysis under Mayo/Alice step two. Id. at 21-22. 9 Appeal2016-005511 Application 13/756,193 Appellants' assertions do not persuade us of Examiner error. Although claim 1 requires "generating a market price profile ... based on load tests run in a cloud service environment," it does not require contemporaneous load tests. Final Act. 4--5. Claim 1 encompasses profile generation "based on load tests run in a cloud service environment" at some earlier time to obtain the load-test data. Additionally, like claim 1, claims 7 and 12 require "generat[ing] a market price profile" based on "simulation of various workloads and various numbers of users" in a "cloud environment." And like claim 1, claims 7 and 12 do not require contemporaneous simulations to obtain data. Id. at 7, 9. Instead, claims 7 and 12 encompass profile generation based on previously obtained data. As the Examiner reasons, the claims "cover[] data representing different items on a work sheet." Id. at 4, 7, 9. "Without additional limitations," manipulating "existing information to generate additional information is not patent eligible." Digitech, 758 F.3d at 1351. As additional elements, the claims recite a "processing resource," a "memory resource," a storage "medium," and a "graphical user interface." App. Br. Claims App'x i-v. The Specification describes those computer components generically. See Spec. ,r,r 60-61. For example, the Specification explains that "storage ( e.g., memory)" includes volatile storage, "such as various types of dynamic random access memory (DRAM), among others," and nonvolatile storage, "such as flash memory, electrically erasable programmable read-only memory (EEPROM), phase change random access memory (PCRAM), magnetic storage such as a hard disk, tape drives, floppy disk, and/or tape storage, optical discs, ... as well as other types of machine readable media." Id. ,r 61. The claims employ the 10 Appeal2016-005511 Application 13/756,193 additional elements in their ordinary capacities to collect, manipulate, and display data. Court decisions have recognized that generic computer components operating to collect, manipulate, and display data are well understood, routine, and conventional to a skilled artisan. See, e.g., Alice, 134 S. Ct. at 2360; Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318-20 (Fed. Cir. 2016); Versata Dev. Grp., Inc. v. SAP Am., Inc.,793 F.3d 1306, 1334 (Fed. Cir. 2015); Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715-16 (Fed. Cir. 2014); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014). SUMMARY For the reasons discussed above, Appellants' arguments have not persuaded us of any error in the Examiner's findings or conclusions under Mayo/Alice step one or step two. Hence, we sustain theÂ§ 101 rejection of claims 1-15. 4 TheÂ§ 112 f 2 Rejection of Claims 1-6, 16, and 17 INTRODUCTION Section 112's second paragraph requires that the specification "conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." 35 U.S.C. Â§ 112 ,r 2. Due to the need for "particular[ity]" and "distinct[ness]," claim language that "is ambiguous, vague, incoherent, opaque, or otherwise unclear in describing and defining the claimed invention" warrants a 4 In the event of continued prosecution, the Examiner should consider a Â§ 101 rejection of claims 16-20. 11 Appeal2016-005511 Application 13/756,193 rejection underÂ§ 112 ,r 2. In re Packard, 751 F.3d 1307, 1311, 1313 (Fed. Cir. 2014); see Ex parte McAward, Appeal 2015-006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017) (precedential). Similarly, the Supreme Court has held in a litigation context thatÂ§ 112 ,r 2 "require[s] that a patent's claims, viewed in light of the specification and prosecution history, inform those skilled in the art about the scope of the invention with reasonable certainty." Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2129 (2014). Section 112's definiteness requirement "strikes a 'delicate balance' between 'the inherent limitations of language' and providing 'clear notice of what is claimed."' Son ix Tech. Co. v. Puhl 'ns Int'!, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017) (quoting Nautilus, 134 S. Ct. at 2129). THE EXAMINER'S POSITION For claim 1 's limitation "generating a market price profile per workload unit, generating the market price including analyzing a cost of a cloud service application as a function of a workload and pricing by a cloud service provider based on load tests run in a cloud service environment," the Examiner determines that "[i]t is unclear what the 'load tests run' are referring to," and "[t]he claim is incomplete for omitting essential steps, such omission amounting to a gap between the steps." Final Act. 11. In addition, the Examiner explains that claim 1 "includes an antecedent basis issue" because "[t]he claim recites generating 'the market price', but the claim only previously recites 'generating a market price profile per workload unit."' Id. at 12. The Examiner reasons that "[i]t is unclear if these two limitations are referring to the same thing." Id. 12 Appeal2016-005511 Application 13/756,193 DISCUSSION Appellants assert that "the term 'load testing' is known to one skilled in the art and therefore it is clear what the term refers to and what it means." Reply Br. 4. Further, Appellants cite the Specification's discussion of "running load tests." Id. (citing Spec. ,r 14). But Appellants ignore the antecedent-basis issue identified by the Examiner. App. Br. 19; Reply Br. 4. We agree with the Examiner that claim 1 's recitation of "a market price profile" followed closely by "the market price" renders claim 1 unclear due to uncertainty whether "these two limitations are referring to the same thing." See Final Act. 12. Consequently, we sustain the Â§ 112 ,r 2 rejection of claim 1 and its dependent claims 2---6, 16, and 17. TheÂ§ 103 (a) Rejection of Claims 1-11 Based on Weinman and Niu INDEPENDENT CLAIM 1: "HISTORY OF CUSTOMER BEHAVIOR IN RESPONSE TO A NUMBER OF PRICE ADWSTMENTS" Appellants argue that the Examiner erred in rejecting claim 1 because Weinman fails to disclose or suggest a "history of customer behavior in response to a number of price adjustments" as required by claim 1. See App. Br. 14; Reply Br. 1-2. More specifically, Appellants assert that "Weinman says nothing whatsoever about any history of customer behavior." App. Br. 10 ( emphasis omitted); Reply Br. 1-2. Appellants also assert that Weinman' s disclosure of pricing based on "historical price and utilization information of the resources" concerns "something substantially different" than a "history of customer behavior in response to a number of price adjustments." App. Br. 9-10 (emphasis omitted); Reply Br. 2. But Appellants fail to explain how that "something substantially different" actually differs from the disputed limitation. App. Br. 9-10; Reply Br. 2. 13 Appeal2016-005511 Application 13/756,193 Appellants' arguments do not persuade us of Examiner error because, as the Examiner finds, Weinman discloses a "pricing manager" that sets prices for cloud resources based on "historical price and utilization of the resources, competitor pricing information, and forecasted resource demand information." Ans. 3, 6 (citing Weinman ,r,r 22, 37, Fig. 1); see Final Act. 15-16 (citing Weinman ,r,r 22, 37, 46, 76). Further, the Examiner finds that although Weinman employs "different terminology" than the disputed limitation, Weinman' s system "performs the same function of generating a profile ( setting prices) based on a history of customer behavior in response to price adjustments." Ans. 6. The Examiner reasons that the "historical price and utilization information of the resources" shows "how customers respond to different prices by buying more or less." Id. Appellants fail to identify any errors in the Examiner's findings or any flaws in the Examiner's reasoning. Reply Br. 1-2; see App. Br. 9-11, 14. In addition, the Examiner determines that Niu teaches or suggests the disputed limitation. See Final Act. 15-16; Ans. 6-7. In particular, Niu discloses a model for "cloud bandwidth allocation and pricing" that permits a cloud provider to "decide[] the actual bandwidth reservation for tenants through demand estimation based on workload analysis." Niu 151, 153. Niu's model employs predicted demand statistics for multiple tenants, e.g., demand means Âµ(t) and covariances ~(t), to determine reservation fees as well as usage fees. Id. at 151-52, 159---61. Niu explains that a cloud provider may "predict[] demand statistics based on demand history," i.e., "tenant demand history," "historical demand," and "historical workload data." Id. at 151-52, 158-160. Niu also explains that the cloud provider may "leverage statistical learning to predict tenant demands and make actual 14 Appeal2016-005511 Application 13/756,193 bandwidth reservations for the tenants." Id. at 151. Moreover, the cloud provider may make "predictions for individual tenants" based on "tenant demand history" obtained "from online monitoring," e.g., "from cloud monitoring services." Id. at 152-53, 158. The Specification similarly describes "recording real user interaction with an application" to obtain data concerning "specific scenarios that simulate real demand patterns." Spec. ,r 15. Niu' s "predictions for individual tenants" based on "tenant demand history" teach or suggest tenant/ customer profiles based on tenant/ customer behavior. See Final Act. 15-16; Ans. 6-7, 11. INDEPENDENT CLAIM 7: "HISTORY OF CUSTOMER BEHAVIOR IN RESPONSE TO A CHANGE IN EXECUTION RESOURCES OF CLOUD SERVICE OFFERINGS" Appellants argue that the Examiner erred in rejecting claim 7 because Weinman and Niu fail to disclose or suggest a "history of customer behavior in response to a change in execution resources of cloud service offerings" as required by claim 7. See App. Br. 9-12; Reply Br. 2-3. More specifically, Appellants assert that Weinman "says nothing whatsoever" about a "history of customer behavior in response to a change in execution resources of cloud service offerings" or about "generating any profile, much less generating a behavioral profile per customer." App. Br. 10-11 ( emphasis omitted). Appellants also assert that "Niu says nothing whatsoever regarding either the 'historical workload data' or the 'demand history' including any 'history of customer behavior in response to a change in execution resources of cloud service offerings."' Id. at 11-12 ( emphasis omitted). Appellants' arguments do not persuade us of Examiner error because they attack the references individually, while the Examiner relies on their combined disclosures to reject claim 7. See Final Act. 19-22; Ans. 7-8, 15 Appeal2016-005511 Application 13/756,193 11-12. Where a rejection rests on the combined disclosures in the references, an appellant cannot establish nonobviousness by attacking the references individually. See In re Merck & Co., 800 F .2d 1091, 1097 (Fed. Cir. 1986). Here, the combined disclosures in Weinman and Niu teach or suggest the disputed limitation. As discussed above for claim 1, Niu's "predictions for individual tenants" based on "tenant demand history" teach or suggest tenant/customer profiles based on tenant/customer behavior. See Niu 152-53, 158. In addition, Weinman discloses: (1) "maintain[ing] information regarding the availability and utilization of the resources" and (2) setting prices based on "historical price and utilization information of the resources," including "historical pricing data for resources," "competitor pricing information," and a "change in the availability of resources." Weinman ,r,r 20, 22, 24, 27, 35, 46, 70-71, 76. A "change in the availability of resources" corresponds to a "change in execution resources of cloud service offerings" according to claim 7. Consequently, Weinman teaches or suggests profiles based on changes in execution resources of cloud service offerings. Appellants fail to address Weinman's use of historical information concerning resource utilization and availability for pricing purposes. See App. Br. 9-11; Reply Br. 2-3. INDEPENDENT CLAIM 7: "DETERMINATION OF A DEMAND PATTERN BY SIMULATION" Appellants argue that the Examiner erred in rejecting claim 7 because Niu fails to disclose or suggest a "determination of a demand pattern by simulation of various workloads and various numbers of users in a cloud environment" as required by claim 7. See App. Br. 8-9; Reply Br. 3. In 16 Appeal2016-005511 Application 13/756,193 particular, Appellants contend that "Niu say[ s] nothing about determination of a demand pattern by simulation" and instead "describes something substantially different, namely the 'trading simulations' are performed to determine the performance of different pricing algorithms." App. Br. 8 ( emphasis omitted); Reply Br. 3. Appellants also contend that in Niu "the 'demand mean and coveriances' [sic] are actually provided as input parameters to the simulation." App. Br. 9 (emphasis omitted); Reply Br. 3. According to Appellants, "the 'trading simulations' of Niu are clearly not determining any demand information, but rather use pre-defined demand values as inputs to compare different pricing algorithms." App. Br. 9 ( emphasis omitted); Reply Br. 3. Appellants' arguments do not persuade us of Examiner error because, as the Examiner correctly finds, Niu discloses determining a demand pattern by simulation of various workloads and various numbers of users in a cloud environment. See Final Act. 21-22; Ans. 3--4, 8-10; Niu 160-62 (Â§ 7). As discussed above for claim 1, Niu discloses a model for "cloud bandwidth allocation and pricing" that permits a cloud provider to determine bandwidth reservations and reservation fees for multiple tenants. Niu 151-53, 159-61. Niu's model rests on "two novel step-size-free algorithms." Id. at 155; see id. at 152, 155-58 (Â§ 5), 162. Niu "simulate[s] a computerized bandwidth reservation and trading environment based on" each algorithm and uses predicted demand means Âµ(t) and covariances ~(t) as inputs to each algorithm. Id. at 159-61. Each algorithm calculates bandwidth reservations and reservation fees for multiple tenants "every 10 minutes" over a "test period of 810 minutes." Id. at 160-61. The bandwidth reservations calculated by each algorithm "every 10 minutes" over a "test period of 810 17 Appeal2016-005511 Application 13/756,193 minutes" constitute demand patterns determined by simulation. See Ans. 8-9. Accordingly, the Examiner finds that "a 'demand pattern' ... include[s] the bandwidth reservations ... which represent volume." Ans. 9; see id. at 12. Appellants fail to address the Examiner's finding, which is supported by the preponderance of evidence. See App. Br. 8-9; Reply Br. 1-3. MOTIVATION TO COMBINE WEINMAN AND NIU Appellants assert that the Examiner erred in rejecting claims 1 and 7 because the Examiner's rationale for combining Weinman and Niu "appears to admit that Niu uses demand information as an input to a simulation" and, therefore, "clearly fails to explain why it would have been obvious to perform a modification that relies on Niu to teach 'determination of a demand pattern by simulation of various workloads and various numbers of users."' App. Br. 13 ( emphasis omitted). Based on those assertions, Appellants contend that the Examiner failed to provide "articulated reasoning to explain why this particular modification would have been obvious" or "a valid rationale to establish a prima facie case of obviousness." Id. at 13, 15. Appellants' arguments unpersuasively focus on the inputs to Niu's simulation and disregard the outputs from Niu' s simulation. As explained above, Niu's simulation uses each algorithm to calculate bandwidth reservations and reservation fees for multiple tenants "every 10 minutes" over a "test period of 810 minutes," and those bandwidth reservations constitute demand patterns determined by simulation. See Niu 160-61. Moreover, based on the simulation results from each algorithm, Niu plots the 18 Appeal2016-005511 Application 13/756,193 mean price discount averaged over all tenants versus time. Id. at 161 Fig. 11; see also Final Act. 1 7; Ans. 4, 9. Accordingly, the Examiner determines that a person of ordinary skill in the art would have combined Weinman and Niu for at least two reasons. See Final Act. 18-19, 25; Ans. 12-13. First, the Examiner finds that "Niu improves upon Weinman by explicitly disclosing conducting testing and simulating using demand information to determine mean prices." Final Act. 18; Ans. 12. The Examiner explains that a person of ordinary skill would have been motivated to include Niu's "simulating and testing" in Weinman "to efficiently obtain more accurate estimates of what the pricing will be." Ans. 12. Second, the Examiner finds that "Niu improves upon Weinman by explicitly disclosing that there is an explicit capacity for the cloud based on a 'workload analysis."' Final Act. 18. The Examiner explains that a person of ordinary skill would have considered capacity limitations to "efficiently take into account limitations on what is available to a system when determining the changing price." Id. at 18-19. Thus, the Examiner provides articulated reasoning with a rational underpinning for why a person of ordinary skill in the art would have combined Weinman and Niu. See KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 415, 418 (2007). SUMMARY FOR INDEPENDENT CLAIMS 1 AND 7 Because Appellants' arguments do not persuade us of Examiner error, and because the combined disclosures in Weinman and Niu teach or suggest the subject matter of claims 1 and 7, we sustain theÂ§ 103(a) rejection of claims 1 and 7. 19 Appeal2016-005511 Application 13/756,193 DEPENDENT CLAIMS 2---6 AND 8-11 Claims 2---6 depend directly or indirectly from claim 1, and claims 8-11 depend directly or indirectly from claim 7. Appellants do not argue patentability separately for these dependent claims. App. Br. 6-15; Reply Br. 1-3. Because Appellants do not argue the claims separately, we sustain theÂ§ 103(a) rejection of claims 2-6 and 8-11 based on Weinman and Niu for the same reasons as the independent claims. See 3 7 C.F .R. Â§ 4I.37(c)(l)(iv) (2015). TheÂ§ 103(a) Rejection of Claims 12-20 Based on Weinman, Niu, and Stienhans INDEPENDENT CLAIM 12 Appellants argue that the Examiner erred in rejecting claim 12 because Niu fails to disclose or suggest "generat[ing] a market price profile per workload unit that includes simulation of various workloads and various numbers of users on an application in a cloud environment" as required by claim 12. See App. Br. 15-16 (emphasis omitted). According to Appellants, Niu "actually describes something different, namely using simulations to compare the performance of different pricing algorithms." Id. at 16 ( emphasis omitted). Appellants' arguments do not persuade us of Examiner error because they address only Niu, while the Examiner relies on the combined disclosures in Weinman and Niu to teach or suggest the disputed limitation. See Final Act. 35--41; Ans. 13-15. As discussed above for claim 7, Weinman discloses: ( 1) "maintain[ing] information regarding the availability and utilization of the resources"; and (2) setting prices based on "historical price and utilization information of the resources," including 20 Appeal2016-005511 Application 13/756,193 "historical pricing data for resources" and "competitor pricing information." Weinman ,r,r 20, 22, 24, 27, 35, 46, 70-71, 76. Consequently, Weinman teaches or suggests generating a market price profile per workload unit. See Final Act. 15, 19-20, 35; Ans. 3, 7-8. Also, as discussed above for claim 7, Niu teaches or suggests a simulation of various workloads and various numbers of users on an application in a cloud environment. See Final Act. 21-22, 37-38; Ans. 3--4, 8-10; Niu 160-62 (Â§ 7). In addition, Appellants argue that the Examiner erred in rejecting claim 12 because Stienhans fails to disclose or suggest "generat[ing] a sizing rule profile per cloud service including rules for replacing a machine with another machine having different characteristics that affect a performance level" as required by claim 12. See App. Br. 16-17 (emphasis omitted). More specifically, Appellants assert that Stienhans "appears to be silent regarding any difference in characteristics that affect [a] performance level between the 'third-party cloud-based computing resource' and the 'enterprise-maintained computing resource."' Id. at 17. Appellants' arguments do not persuade us of Examiner error because, as the Examiner correctly finds, "Stienhans discloses making a substitute selection for replacing a machine with a different characteristic in three different ways - (A) third-party cloud-based resource (i.e. a general characteristic of the machine); (B) processing load (i.e. processing speed of cloud resource); [and] (C) availability (i.e. speed/efficiency)." Ans. 14--15 (citing Stienhans ,r 25); see Final Act. 39--40 (citing Stienhans ,r,r 4, 25-26). For instance, Stienhans describes "potentially heterogeneous" enterprise- maintained cloud services and third-party cloud services that may entail different cost analyses. Stienhans ,r,r 17-18. Stienhans discloses "rules or 21 Appeal2016-005511 Application 13/756,193 predefined conditions" for determining when to replace an enterprise- maintained computing resource with a third-party computing resource, e.g., "when a processing load of an enterprise-maintained computing resource exceeds some predefined load threshold." Id. ,r 25. As the Examiner correctly finds, the ability to handle a processing load relates to the performance level, e.g., processing speed or capacity, of the enterprise-maintained computing resource relative to the third-party computing resource. See Ans. 14--15. Appellants fail to address the Examiner's finding, which is supported by the preponderance of evidence. See App. Br. 16-17; Reply Br. 1-3. Although Appellants challenge the Examiner's rationale for combining the references, that challenge rests on arguments that we considered unpersuasive for claims 1 and 7. App. Br. 17; see id. at 12-13, 15. Because Appellants' arguments do not persuade us of Examiner error, and because the combined disclosures in Weinman, Niu, and Stienhans teach or suggest the subject matter of claim 12, we sustain theÂ§ 103(a) rejection of claim 12. DEPENDENT CLAIMS 13-20 Claims 13-15 and 20 depend directly or indirectly from claim 12; claims 16 and 17 depend directly from claim 1; and claims 18 and 19 depend directly from claim 7. Appellants do not argue patentability separately for these dependent claims. App. Br. 15-18; Reply Br. 1--4. Because Appellants do not argue the claims separately, we sustain theÂ§ 103(a) rejection of claims 13-20 based on Weinman, Niu, and Stienhans for the 22 Appeal2016-005511 Application 13/756,193 same reasons as the independent claims. See 3 7 C.F .R. Â§ 41.3 7 ( c )( 1 )(iv) (2015). TheÂ§ 103(a) Rejection of Claims 2, 4-6, and 9 Based on Weinman, Niu, and Mao Claims 2 and 4---6 depend directly or indirectly from claim 1, and claim 9 depends directly from claim 7. For these dependent claims, Appellants assert that: ( 1) "Weinman and Niu fail to establish a prima facie case of obviousness for independent claims 1 and 7" and (2) "Mao also fails to disclose or suggest at least the aforementioned subject matter of claims 1 and 7." App. Br. 18-19. Appellants' assertions do not amount to separate patentability arguments. The applicable rules "require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art." In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Because Appellants do not argue the claims separately, we sustain theÂ§ 103(a) rejection of claims 2, 4---6, and 9 based on Weinman, Niu, and Mao for the same reasons as the independent claims. See 3 7 C.F .R. Â§ 41.3 7 ( c )( 1 )(iv) (2015). DECISION We affirm the rejection of claims 1-15 under 35 U.S.C. Â§ 101. We affirm the rejection of claims 1---6, 16, and 17 under 35 U.S.C. Â§ 112 ,T 2. We affirm the rejections of claims 1-20 under 35 U.S.C. Â§ 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l)(iv). See 37 C.F.R. Â§ 41.50(Â±). 23 Appeal2016-005511 Application 13/756,193 AFFIRMED 24