Ex Parte Patterson et al

Board of Patent Appeals and Interferences

Mar 23, 2011

11060605 (B.P.A.I. Mar. 23, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte BRET PATTERSON and JOHN R. ROWLAND
____________________

Appeal 2009-007821
Application 11/060,6051
Technology Center 2100
____________________

Before HOWARD B. BLANKENSHIP, JEAN R. HOMERE AND JAY P.
LUCAS, Administrative Patent Judges.

LUCAS, Administrative Patent Judge.

DECISION ON APPEAL2

1 Application filed February 17, 2005. The real party in interest is IBM
Corp.
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-007821
Application 11/060,605

STATEMENT OF THE CASE
Appellants appeal from a final rejection of claims 1, 3 to 8, 10 to 15
and 17 to 23 under authority of 35 U.S.C. § 134(a). Claims 2, 9, and 16 are
cancelled (Brief 4). The Board of Patent Appeals and Interferences (BPAI)
has jurisdiction under 35 U.S.C. § 6(b).

We affirm the rejections.

Appellants’ invention relates to a method and system for using
Application Response Measurement (ARM) correlators to adjust the logging
level while monitoring transactions. In the words of Appellants:

Applications may use IBM Tivoli®
Monitoring for Transaction Performance to
measure transaction response times through the
IBM Tivoli® Application Response
Measurement (ARM) Application Program
Interface (API). In order to use ARM, applications
must be modified to call the ARM API at the
defined business transaction boundaries. ARM
instrumented applications may use the
IBM Tivoli® Monitoring for Transaction
Performance console to visualize transaction
topology, define thresholds for transactions, and
receive alerts when transaction thresholds are
violated.
. . . .
Although the IBM Tivoli® Monitoring for
Transaction Performance captures detailed
performance data for all e-business transactions, a
problem may exist in that the log files provide only
a general idea of how to solve the problem. The
extensive log files that are created for the
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e-business transactions require an extensive review
of all of the logged transactions and the related
code to determine where and when an error occurs
and what part of the code caused the error. This
operation may be time consuming and possibly
prone to further error. Thus, providing additional
trace logs or log statements would assist in
determining the location and time of the
transaction instance where the error' occurred, and,
in turn, the related portion of code that was
accessed during the transaction.
. . . .
The present invention provides a method,
apparatus and computer instructions for additional
logging capabilities in response to a threshold
being violated. The exemplary aspects of the
present invention utilize a parent and current
correlator as a field in all log files. By making use
of this logging service/format, the present
invention advantageously uses the exact log
statements to link to a node in the TMTP
transaction decomposition topology. Additionally,
the present invention makes use of a TMTP
violation flag to dynamically increase the log
levels. The TMTP violation flag is initiated in
response to an ARM threshold violation.

(Spec. 2, 3 and 5).
The following illustrates the claims on appeal:
Claim 1:
1. A method in a data processing system for
monitoring and correlating transactions, the
method comprising:

initiating a call to a measurement
application;

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Application 11/060,605

responsive to the call, receiving a correlator,
wherein the correlator indicates a logging
level for transactions;

monitoring a transaction for a parameter;

determining if the parameter violates a
threshold;

responsive to a threshold violation, setting
an indicator in the correlator, wherein the
indicator indicates an override of the logging level;
and

logging transactions at an increased logging
level responsive to the indicator being set.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Green US 2004/0122942 Jun. 24, 2004
Rothschild WO 00/47003 Aug. 10, 2000
REJECTIONS
The Examiner rejects the claims as follows:

R1: Claims 15 to 20 were rejected under 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter, i.e. signals. As
claim 16 is cancelled and claim 23 is dependent on independent claim 15,
the rejection is reformed to apply to claims 15, 17 to 20, and 23.
R2: Claims 1, 3 to 8, 10 to 15 and 17 to 23 stand rejected under 35
U.S.C. § 103(a) for being obvious over Green in view of Rothschild.

We will review the rejections in the order argued and as grouped in
the Brief. We have only considered those arguments that Appellants
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Application 11/060,605

actually raised in the Brief. Arguments Appellants could have made but
chose not to make in the Brief have not been considered and are deemed to
be waived. See 37 C.F.R. § 41.37(c)(1)(vii).

ISSUES
The pivotal issues before us are:
(1) Have Appellants shown that the Examiner erred in rejecting the
claims under and 35 U.S.C. § 103(a)? The issue specifically turns on
whether the combination of Green and Rothschild teaches a correlator that
indicates a logging level as claimed.
(2) Have Appellants shown that the Examiner erred in rejecting the
claims under 35 U.S.C. § 101? The issue turns on whether transitory
computer readable media, such as signals are directed to statutory subject
matter.
FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. Appellants have invented an indicator in monitoring and logging
transactions across a network called a correlator (Brief 6, top). Should a
parameter carried by the correlator vary beyond a threshold value,
indicating a situation of interest, the invention raises the logging level to
further study the situation (id.).
2. The Green reference teaches monitoring a network using a correlator for
transmitting information about parameters concerning performance
(¶ [0010]). The correlator can contain various types of transactional
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Application 11/060,605

information, including violation of a threshold value for a parameter
(¶ [0031]; Table 2).
3. The Rothschild reference teaches monitoring a network. Upon
encountering an error situation, the system ups the logging level (Page 4,
lines 1 to 5; lines 23 to 30).
PRINCIPLES OF LAW

Appellants have the burden on appeal to the Board to demonstrate
error in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86
(Fed. Cir. 2006) (“On appeal to the Board, an applicant can overcome a
rejection [under § 103] by showing insufficient evidence of prima facie
obviousness or by rebutting the prima facie case with evidence of secondary
indicia of nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355
(Fed. Cir. 1998)).

ANALYSIS
Arguments with respect to the rejection
of claims 15, 17 to 20, and 23
under 35 U.S.C. § 101 [R1]

The first argument addresses the issue of statutory subject matter
under 35 U.S.C. § 101.
Claims 15, 17 to 20, and 23 recite a computer readable medium
encoded with a computer program. We find, in the Specification, page 29,
top, Appellants define computer readable medium as including a data signal
embodied in a carrier frequency wave.
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Application 11/060,605

The Court of Appeals for the Federal Circuit indicated: “A transitory,
propagating signal like Nuijten’s is not a ‘process, machine, manufacture, or
composition of matter.’ Those four categories define the explicit scope and
reach of subject matter patentable under 35 U.S.C. § 101; thus, such a signal
cannot be patentable subject matter.” In re Nuijten, 500 F.3d 1346, 1357
(Fed. Cir. 2007).
We thus find these claims to be directed to non-statutory subject
matter.
Arguments with respect to the rejection
of claims 1, 3 to 8, 10 to 15 and 17 to 23
under 35 U.S.C. § 103(a) [R3]

The Examiner has rejected the noted claims for being obvious over
Green in view of Rothschild, for the detailed reasons explained in the
Answer, pages 4 to 6.
Appellants argue that the rejection is defective as “the cited sections
of Green do not teach or suggest that the correlator indicates the logging
level for transactions.” (Brief 14, bottom). The Examiner’s response, with
which we do not find error, is an acquiescence on that point about Green, but
an observation that the Rothschild reference is relied upon for that particular
teaching to render the claim obvious over the prior art (Ans. 21, bottom).
The Examiner rests his conclusion on particular citations from Rothschild
showing the use of an increased logging level when a parameter exceeds a
threshold to be well known in the art (Rothschild 4, top and bottom). Green
teaches a number of parameters of the network to be carried by the correlator
(Green ¶ [0037] inter alia). We thus agree with the Examiner that the
combination of references supply the required teaching.
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Appellants argue further that Rothschild does not teach the “setting an
indicator in the correlator in response to a threshold violation, wherein the
indicator indicates an override of the logging level.” (Brief 15, middle).
The Examiner argues in great detail that the two references do combine to
meet this teaching (Ans. 22 to 24). We adopt and endorse the Examiner’s
argument, finding no error it in.
CONCLUSIONS OF LAW
Based on the findings of facts and analysis above, we conclude that
Appellants have not shown that the Examiner erred in rejecting claims 15,
17 to 20, and 23 under 35 U.S.C. § 101 (R1) or in rejecting claims 1, 3 to 8,
10 to 15 and 17 to 23 under 35 U.S.C. § 103(a) (R2).
DECISION
We affirm the Examiner’s rejections R1 and R2 of claims 1, 3 to 8, 10
to 15 and 17 to 23 respectively.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

peb

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IBM CORP (YA)
C/O YEE & ASSOCIATES PC
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