Ex Parte O et al

Patent Trial and Appeal Board

Feb 16, 2017

13171558 (P.T.A.B. Feb. 16, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/171,558 06/29/2011 Patrick J. O'Sullivan AUS920110252US1 5744
87220 7590 02/16/2017
Walder Intellectual Property Law (END)
C/O Walder Intellectual Property Law, P.C.
17304 Preston Road
Suite 200
Dallas, TX 75252
EXAMINER
ARAQUE JR, GERARDO
ART UNIT PAPER NUMBER
3689
MAIL DATE DELIVERY MODE
02/16/2017 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 PATRICK J. O’SULLIVAN and JAMES C. THORBURN
Appeal 2014-007269
Application 13/171,558
Technology Center 3600
Before ANTON W. FETTING, BIBHU R. MOHANTY, and
JAMES A. WORTH, Administrative Patent Judges.
FETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Patrick J. O’Sullivan and James C. Thorbum (Appellants) seek review
under 35 U.S.C. § 134 of a final rejection of claims 1—25, the only claims
pending in the application on appeal. We have jurisdiction over the appeal
pursuant to 35 U.S.C. § 6(b).
1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed April 4, 2014) and Reply Brief (“Reply Br.,” filed June 19, 2014),
and the Examiner’s Answer (“Ans.,” mailed April 23, 2014), and Final
Action (“Final Act.,” mailed November 7, 2013).
Appeal 2014-007269
Application 13/171,558
The Appellants invented mechanisms for migrating computing
environment entitlement contracts (CEEC) between a seller and a buyer
using a CEEC market. Spec. para. 1.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A method, in a data processing system comprising at least
one computing device and a plurality of computing resources,
for migrating a computing environment entitlement
contract from one computing resource to another,
comprising:
[1] generating, by the at least one computing device,
one or more computing environment entitlement contract
(CEEC) data structures,
each CEEC data structure defining terms of a business
level agreement between a contracting party and a
provider of the data processing system,
wherein the terms of the CEEC
specify a set of computing resources having a
specified configuration,
and
further specify that the set of computing resources
are to be used by the contracting party for a
specified purpose at a specified level and pattern of
intensity for a specified period of time;
[2] associating, by the at least one computing device,
the one or more CEEC data structures
with
a computing resource cohort,
wherein the computing resource cohort is a collection of
computing resources having similar configurations;
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Application 13/171,558
[3] identifying, by the at least one computing device,
a seller of a CEEC data structure,
in the one or more CEEC data structures;
[4] identifying, by the at least one computing device,
a buyer of a CEEC data structure,
in the one or more CEEC data structures;
[5] migrating the CEEC data structure from the seller to the
buyer;
and
[6] executing workloads
in accordance with terms specified in the CEEC data
structure at the buyer
after migrating the CEEC data structure from the seller to
the buyer,
wherein the seller and the buyer are computing resources
or collections of computing resources.
The Examiner relies upon the following prior art:
Claims 13—24 stand rejected under 35U.S.C. § 101 as directed to non-
statutory subject matter.
Claims 1—4, 6—10, 13—16, 18—22, and 25 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Chambliss.
Claims 5 and 17 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Chambliss and Chen.
Chen
Chambliss
Souder
US 2005/0222885 A1
US 7,334,032 B2
US 7,516,221 B2
Oct. 6, 2005
Feb. 19, 2008
Apr. 7, 2009
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Appeal 2014-007269
Application 13/171,558
Claims 11 and 23 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Chambliss.
Claims 12 and 24 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Chambliss and Souder.
ISSUES
The issues of statutory subject matter turn primarily on whether a
propagating signal is within the scope of the recited medium. The issues of
novelty and obviousness turn primarily on whether Chambliss describes
migrating a CEEC data structure between computers.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Claim Construction
01. The disclosure lexicographically defines, in the context of the
Specification, a computer readable storage medium as any
tangible medium that can contain or store a program for use by or
in connection with an instruction execution system, apparatus, or
device. Spec. para. 39
Facts Related to the Prior Art
Chambliss
02. Chambliss is directed to storage systems that service multiple
workloads, each with potentially different quality of service
(QOS) requirements, and more particularly to an improved system
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Application 13/171,558
for determining whether new workloads can be added to an
existing system. Chambliss 1:7—11.
03. Chambliss describes how in storage systems that service
multiple workloads, the multiple workloads may originate from
different sources including different applications, different
departments of a company, or from totally independent customers,
as in the case of a Storage Service Provider (SSP). One issue in
shared storage systems that provide service guarantees to existing
workloads is how to determine whether a new workload that
wants to be serviced by the storage system should be accepted for
service or not. Chambliss 1:13—21.
04. Chambliss describes how the degree to which a shared storage
system meets QOS requirements is usually evaluated using a
contractual agreement called a Service Level Agreement (SLA).
The SLA spells out the performance Service Level Guarantees
(SLGs) that must be satisfied by the system. Chambliss 1:22—26.
05. Chambliss describes a multi-workload storage system adapted
to service input/output requests. The storage system includes
storage elements and a proxy load generator connected to the
storage elements. The proxy load generator creates a proxy
workload based on an additional workload from a potential client.
The proxy workload has a reduced duty cycle when compared to a
duty cycle of the additional workload. A control server is
connected to the storage elements and the proxy load generator.
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Application 13/171,558
The control server applies the proxy workload to the storage
elements during discontinuous time slices. Chambliss 1:48—58.
ANALYSIS
Claims 13—24 rejected under 35 U.S.C. § 101 as directed to non—statutory
subject matter
This is a rejection based on a transitory signal rather than abstract ideas.
The claims at issue recite a computer readable storage medium. The
Examiner finds a propagating signal is within the scope. Final Act. 2.
As Appellants contend, the Examiner ignores the lexicographic
definition narrowing the scope of this limitation. App. Br. 5—6. Such a
medium is defined as being tangible. As such, the lexicographic definition
explicitly excludes intangible embodiments, such as signals.
Claims 1— 4, 6—10, 13—16, 18—22, and 25 rejected under 35 U.S.C. § 102(b)
as anticipated by Chambliss
Independent claims 1,13, and 25 each recite migrating the CEEC data
structure from the seller computer to the buyer computer. We are persuaded
by Appellants' argument that Chambliss fails to describe this.
The Examiner finds that the Chambliss service level agreement (SLA) is
equivalent to the claimed CEEC. Final Act. 10. Chambliss has exactly four
recitations regarding the SLA, none of which describe migrating it in the
form of a data structure between computers.
Chambliss does migrate a proxy workload, but this is not described as
having the data structure of the recited CEEC, and the Examiner did not find
the workload to be the equivalent to the recited CEEC. The Examiner does
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Application 13/171,558
not make any finding as to which specific portion of Chambliss describes the
recited migration, but instead finds that several limitations are generally
described by several portions of Chambliss. See Final Act. 3—7 and Ans. 6—
19. The Examiner’s finding at Answer 16 that Chambliss “teaches the
identification of data structure buyers and sellers and the migration of data
structures from a seller to a buyer” is particularly telling as the Examiner
omits the essential reference to the CEEC itself. Thus, Chambliss fails to
describe the recited migration and the Examiner has made no specific
finding for us to further consider.
To the extent the Examiner finds that the content of the CEEC should be
given no weight as being non-functional (Ans. 18), the final limitation in
each independent claim recites a functional application of the CEEC content.
Claims 5 and 17 rejected under 35 U.S.C. § 103(a) as unpatentable over
Chambliss and Chen
These claims depend from claims 1 and 13.
Claims 11 and 23 rejected under 35 U.S.C. § 103(a) as unpatentable over
Chambliss
These claims depend from claims 1 and 13.
Claims 12 and 24 rejected under 35 U.S.C. § 103(a) as unpatentable over
Chambliss and Souder
These claims depend from claims 1 and 13.
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CONCLUSIONS OF LAW
The rejection of claims 13—24 under 35U.S.C. § 101 as directed to non-
statutory subject matter is improper.
The rejection of claims 1—4, 6—10, 13—16, 18—22, and 25 under 35
U.S.C. § 102(b) as anticipated by Chambliss is improper.
The rejection of claims 5 and 17 under 35 U.S.C. § 103(a) as
unpatentable over Chambliss and Chen is improper.
The rejection of claims 11 and 23 under 35 U.S.C. § 103(a) as
unpatentable over Chambliss is improper.
The rejection of claims 12 and 24 under 35 U.S.C. § 103(a) as
unpatentable over Chambliss and Souder is improper.
DECISION
The rejection of claims 1—25 is reversed.
REVERSED
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