Ex Parte Mahlik et alDownload PDFBoard of Patent Appeals and InterferencesApr 13, 200910163650 (B.P.A.I. Apr. 13, 2009) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte ROBERT A. MAHLIK and SUSETTE M. TOWNSEND ____________ Appeal 2008-4707 Application 10/163,6501 Technology Center 2400 ____________ Decided: 2 April 14, 2009 ____________ Before JEAN R. HOMERE, JAY P. LUCAS, and CAROLYN D. THOMAS, Administrative Patent Judges. THOMAS, Administrative Patent Judge. 1 Application filed June 6, 2002. The real party in interest is International Business Machines Corporation. 2 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 CFR § 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. Appeal 2008-4707 Application 10/163,650 2 DECISION ON APPEAL I. STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a final rejection of claims 1-30 mailed August 15, 2006, which are all the claims remaining in the application. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. A. INVENTION Appellants invented a system, method, and computer readable storage medium for monitoring one or more performance metrics of a computer system over a monitor interval. A monitor program increases a length of the monitor interval in response to determining that the monitor program has fallen behind in processing data for the one or more performance metrics. (Spec., Abstract.) B. ILLUSTRATIVE CLAIM This appeal contains claims 1-30. Claims 1, 15, and 22 are independent claims. Claim 1 is illustrative: 1. A method for dynamically adjusting a monitor interval specifying how often to collect data values for one or more performance metrics, comprising: monitoring, with a monitor program, the one or more performance metrics of a computer system over the monitor interval; determining whether the monitor program has fallen behind processing data values for the one or more performance metrics collected during previous intervals of the monitor interval; and Appeal 2008-4707 Application 10/163,650 3 if so, automatically increasing a duration of the monitor interval. C. REFERENCES The sole reference relied upon by the Examiner in rejecting the claims on appeal are as follows: Yamaguchi US 5,802,303 Sep. 1, 1998 D. REJECTION The Examiner entered the following rejection which is before us for review: Claims 1-30 are rejected under 35 U.S.C. § 102(b) as being anticipated by Yamaguchi. II. PROSECUTION HISTORY Appellants appealed from the Final Rejection and filed an Appeal Brief (App. Br.) on January 16, 2007. The Examiner mailed an Examiner’s Answer (Ans.) on May 24, 2007. Appellants filed a Reply Brief (Reply Br.) on July, 24, 2007. III. FINDINGS OF FACT The following findings of fact (FF) are supported by a preponderance of the evidence. Yamaguchi 1. Yamaguchi discloses that “[t]he monitor data is periodically transmitted at the monitor acquisition interval designated when the monitor is activated” (col. 4, ll. 52-54). Appeal 2008-4707 Application 10/163,650 4 2. In Yamaguchi, “[e]ven when the pertinent monitor data is not completely processed by the monitor data receiving process 032, the network interface 91 of the control node 10 is able to write the next monitor data in the memory in an overlapping manner in which the current data overlaps with the previous data in the storage area” (col. 4, ll. 54-59). 3. In Yamaguchi, “the processing is not adversely influenced by the delay in the process of the monitor data collecting program 03” (col. 4, ll. 59-61). 4. In Yamaguchi, “the monitor data acquiring process and monitor collecting process are conducted independently of each other. Thanks to this provision, it is possible to remove, for example, the problem in which the overall monitor data acquiring process is delayed due to a temporary retardation in the monitor collecting process” (col. 5, ll. 16-21). IV. PRINCIPLES OF LAW "[A]nticipation of a claim under § 102 can be found only if the prior art reference discloses every element of the claim . . . ." In re King, 801 F.2d 1324, 1326 (Fed. Cir. 1986) (citing Lindemann Maschinenfabrik GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1458 (Fed. Cir. 1984)). "[A]bsence from the reference of any claimed element negates anticipation." Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d 1565, 1571 (Fed. Cir. 1986), overruled on other grounds by Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp., 383 F.3d 1337 (Fed.Cir. 2004). Appeal 2008-4707 Application 10/163,650 5 V. ANALYSIS Common Feature In All Claims Our representative claim, claim 1, recites, inter alia, “determining whether the monitor program has fallen behind processing data values for the one or more performance metrics collected during previous intervals of the monitor interval; and if so, automatically increasing a duration of the monitor interval.” Independent claims 15 and 22 recite similar limitations. Thus, the scope of each of the independent claims includes determining whether the monitor program has fallen behind, and, if so, increasing the duration of the monitor interval. The Anticipation Rejection We now consider the Examiner’s rejection of claims 1-30 under 35 U.S.C. § 102(b) as being anticipated by Yamaguchi. The Examiner cites to Yamaguchi, col. 2, lines 11-15 and found that “because Yamaguchi discloses a ‘monitor program’ that has a configurable monitor interval, it anticipates the present claims” (Ans. 5). Appellants contend that “[n]othing in the static monitor interval, ‘specified at initiation of the monitor’ discloses a monitor program configured to determine whether the monitor program has fallen behind . . .” (App. Br. 13-14). Appellants further contend that “[w]hen the monitor program disclosed in Yamaguchi is initiated, a user specifies a monitor interval . . . .If the user desires to change the interval, the monitor program may be stopped, and restarted with a new interval” (id. at 13). Appeal 2008-4707 Application 10/163,650 6 Issue: Have Appellants shown that the Examiner erred in finding that Yamaguchi discloses determining whether the monitor program has fallen behind processing data values and if so, automatically increasing the duration of the monitor interval? The Examiner suggests that because Yamaguchi discloses a configurable monitor interval, Yamaguchi anticipates the determining step and the automatically increasing the duration of the monitor interval step (Ans. 5). We disagree. While Yamaguchi discloses that “the interval of time to reference the acquired data can be appropriately set according to the processing capability of the collecting node” (Yamaguchi, col. 2, ll. 13-15), the Examiner has not shown, and we do not readily find where Yamaguchi discloses conditionally increasing a duration of the monitor interval if the monitor program has fallen behind in processing data values, as set forth in claim 1. Instead, Yamaguchi discloses that the monitor interval is designated when the monitor is activated (FF 1) and in situations where data is not completely processed by the monitor (i.e., a fall behind condition) data is written into memory in an overlapping manner (FF 2). Thus, in Yamaguchi, processing is not adversely influenced by fall behind conditions (i.e., delays) (FF 3) because the data acquiring process and the collecting process are conducted independently of each other (FF 4). In other words, Yamaguchi’s independent process has eliminated any problems associated with fall behind conditions (FF 4) and hence fails to be concerned with determining whether this situation has even occurred. As a result, the absence of determining whether the monitor program has fallen Appeal 2008-4707 Application 10/163,650 7 behind negates anticipation. Therefore, we reverse the anticipation rejection of claim 1 and claims 2-30 which stand therewith. Since we agree with at least one of the arguments advanced by Appellants, we need not reach the merits of Appellants’ other arguments. It follows that Appellants have shown that the Examiner erred in finding that Yamaguchi renders claims 1-30 unpatentable. VI. CONCLUSIONS We conclude that Appellants have shown that the Examiner erred in rejecting claims 1-30. VII. DECISION In view of the foregoing discussion, we reverse the Examiner’s rejection of claims 1-30. REVERSED erc IBM CORPORATION, INTELLECTUAL PROPERTY LAW DEPT 917, BLDG. 006-1 3605 HIGHWAY 52 NORTH ROCHESTER MN 55901-7829 Copy with citationCopy as parenthetical citation