12334552 (P.T.A.B. Feb. 3, 2016)

Ex Parte Muppirala et al

Patent Trial and Appeal BoardFeb 3, 2016

12334552 (P.T.A.B. Feb. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/334,552 12/15/2008 Kishore Kumar MUPPIRALA 56436 7590 02/05/2016 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. 82238810 8486 EXAMINER JORDAN, KIMBERLY L ART UNIT PAPER NUMBER 2194 NOTIFICATION DATE DELIVERY MODE 02/05/2016 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 mkraft@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 KISHORE KUMAR MUPPIRALA, NARAYANAN ANANTHAKRISHNAN NELLA YI, and VIJA Y VISHWANATH HEGDE Appeal2013-010934 Application 12/334,552 Technology Center 2100 Before ERIC S. FRAHM, LARRY J. HUME, and CARL L. SILVERMAN, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL Appeal2013-010934 Application 12/334,552 STATEMENT OF THE CASE This is a decision on appeal under 35 U.S.C. Â§ 134(a) of a final rejection of claims 3-10, 13-15, and 18-22. Claims 1, 2, 11, 12, 16, and 17 have been canceled. We have jurisdiction under 35 U.S.C. Â§ 6(b). We reverse. We have reviewed Appellants' arguments in the Appeal Brief (App. Br. 6-14) and the Reply Brief (Reply Br. 2-7) that the Examiner's rejections of (i) claims 3, 8, 10, 15, and 20-22 under 35 U.S.C. Â§ 103(a) as being unpatentable over Shah et al. (US 7,694,100 B2; issued Apr. 6, 2010) and Cline et al. (US 6,704,877 B2; issued Mar. 9, 2004); (ii) claims 4--7, 13, 14, 18, and 19 as being unpatentable over Shah, Cline, and Duyanovich et al. (US 7,673,189 B2; issued Mar. 2, 2010); and (iii) claim 9 as being unpatentable over Shah, Cline, and Arndt et al. (US 2006/0095610 Al; published May 4, 2006) are in error, and the Examiner's response to Appellants' arguments in the Appeal Brief (Ans. 2--4). Although we agree with the Examiner that Cline teaches or suggests maintaining an average throughput by resizing queues (Ans. 2-3; see Cline at col. 5, 11. 7-8), the Examiner has not rationally articulated how or why one of ordinary skill in the art at the time of Appellants' invention would determine whether the number of inputs/ outputs waiting at the operating system interface queue during run-time is greater than a predetermined number of waiting inputs/outputs when a hardware throughput during run- time is less than or equal to a hardware throughput threshold value, as recited in each of independent claims 3, 10, and 15. We find the Examiner's explanation (see Ans. 2-3) that Cline (see e.g., col. 4, 1. 42 to col. 5, 1. 8) 2 Appeal2013-010934 Application 12/334,552 teaches or suggests the disputed features of claims 3, 10, and 15 is conclusory. Based on the foregoing, we concur with Appellants' assertion (see App. Br. 8-10; Reply Br. 2--4) that the Examiner has not properly established factual determinations and articulated reasoning with a rational underpinning to support the legal conclusion of obviousness for independent claims 3, 10, 15, resulting in a failure to establish a prima facie of obviousness. More specifically, we agree with Appellants' contention (App. Br. 8-10; Reply Br. 2--4) that Cline fails to disclose the two "determining" steps recited in claims 3, 10, and 15, including determining whether the number of inputs/outputs waiting at the operating system interface queue during run-time is greater than a predetermined number of waiting inputs/outputs when a hardware throughput during run-time is less than or equal to a hardware throughput threshold value. As a result, we similarly agree with Appellants (see App. Br. 10-13; Reply Br. 5-7) that claims 4--9, 13, 14, 16, 1 7, and 19-22 should fall for the same reasons as the respective independent claims 3, 10, and 15 from which these claims ultimately depend. Accordingly, we do not sustain the Examiner's rejection of independent claims 3, 10, 15, as well as corresponding dependent claims 4-- 9, 13, 14, 16, 17, and 19-22 depending respectively therefrom. CONCLUSION The Examiner erred in rejecting (i) claims 3, 8, 10, 15, and 20-22 over the combination of Shah and Cline; (ii) claims 4--7, 13, 14, 18, and 19 3 Appeal2013-010934 Application 12/334,552 over the combination of Shah, Cline, and Duyanovich; and (iii) claim 9 over the combination of Shah, Cline, and Arndt. DECISION We reverse the Examiner's rejections of claims 3-10, 13-15, and 18- 22. REVERSED 4