Ex Parte Powers et al

Board of Patent Appeals and Interferences

Dec 3, 2009

10379179 (B.P.A.I. Dec. 3, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JASON POWERS and MARK L. SABIERS
____________

Appeal 2009-005590
Application 10/379,179
Technology Center 3600
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Decided: December 4, 2009
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Before HUBERT C. LORIN, ANTON W. FETTING, and BIBHU R.
MOHANTY, Administrative Patent Judges.

MOHANTY, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-005590
Application 10/379,179

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STATEMENT OF THE CASE
The Appellants seek our review under 35 U.S.C. § 134 (2002) of the
final rejection of claims 1-21 which are all the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF THE DECISION
We AFFIRM.

THE INVENTION
The Appellants’ claimed invention is directed to a method of
monitoring a managed system. System data pertaining to a condition is
monitored for an instance of a threshold of a required performance level not
being satisfied. (Spec. 3:2-11). Claim 1, reproduced below, is
representative of the subject matter of appeal.

1. A method for monitoring a managed system, said method
comprising:
receiving a performance requirement comprising at least one
condition and at least one consequence, said condition describing a
required performance level of a portion of said managed system and
said consequence describing a penalty provided the required
performance level is not satisfied;
monitoring system management data of said managed system
for an instance of a threshold of said required performance level not
being satisfied; and
in response to said threshold not being satisfied, generating a
notification.

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Application 10/379,179

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THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Main US 5,893,905 Apr. 13, 1999
Greene US 2003/0004774 A1 Jan. 2, 2003
Chung US 2003/0167180 A1 Sep. 4, 2003

The following rejections are before us for review:
1. Claims 1-5 and 7-8 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Main and Chung.
2. Claims 6 and 9-21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Main, Chung, and Greene.

THE ISSUE
At issue is whether the Appellants have shown that the Examiner
erred in making the aforementioned rejections.
This issue turns on whether Main discloses “monitoring system
management data of said managed system for an instance of a threshold of
said required performance level not being satisfied”.

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FINDINGS OF FACT
We find the following enumerated findings of fact (FF) are supported
at least by a preponderance of the evidence:1
FF1. Main discloses that Service Level Agreements (SLA’s) are contracts
used between production operations and client organizations that are
responsible for each application. SLA’s specify parameters such as start/end
times to ensure job streams are executed successfully (Col. 1:35-40).
FF2. Main discloses a system and method for monitoring the performance
of selected data processing jobs, comparing the selected performance against
the Service Level Agreements (SLA’s) to which the monitored job belongs,
and identifying the discrepancies (Col. 1:65-2:2).
FF3. Main discloses that an application program runs on the production
server 106 to compare actual job performance data with the SLA data to
identify discrepancies and identify impacts. The results are presented to the
user via the client workstation.

PRINCIPLES OF LAW
Principles of Law Relating Claim Construction
We determine the scope of the claims in patent applications not solely
on the basis of the claim language, but upon giving claims their broadest
reasonable construction in light of the specification as it would be
interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech.
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The properly interpreted claim
must then be compared with the prior art.

1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
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Principles of Law Relating to Obviousness
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See
also KSR, 550 U.S. at 407 (“While the sequence of these questions might be
reordered in any particular case, the [Graham] factors continue to define the
inquiry that controls.”) In KSR, the Supreme Court emphasized “the need
for caution in granting a patent based on the combination of elements found
in the prior art,” id. at 415-16.

ANALYSIS
The Appellants argue that the rejection of claim 1 is improper because
Main fails to disclose “monitoring system management data of said managed
system for an instance of a threshold of said required performance level not
being satisfied” (Br. 10). The Appellants assert that Main discloses that “an
exception is defined by the collected job performance data” and that the
“exception does not imply the use of a ‘threshold’ as claimed” (Br. 10).
The Appellants take the position that identifying a difference between actual
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job performance and Service Level Agreement data does not teach the above
cited claim limitation.
In contrast the Examiner has determined that Main does disclose the
cited claim limitation at: Col. 1:65-2:2, Col. 4:45-49, Col. 1:41-47, and Col.
3:59-61 (Ans. 8-9). The Examiner considers Main’s Service Level
Agreement to include parameters for job performance or “thresholds” (Ans.
9).
We agree with the Examiner. As noted by the Appellants, claim 1
requires in part “monitoring system management data of said managed
system for an instance of a threshold of said required performance level not
being satisfied”.
Main has disclosed that Service Level Agreements (SLA’s) are
contracts used between production operations and client organizations that
are responsible for each application and that SLA’s specify parameters such
as start/end times to ensure job streams are executed successfully (FF1).
Main discloses a system and method for monitoring the performance of
selected data processing jobs, comparing the selected performance against
the Service Level Agreements (SLA’s) to which the monitored job belongs,
and identifying the discrepancies (FF2). The Appellants argue that Main’s
description of an “exception or discrepancy does not teach or suggest the use
of ‘a threshold’ as claimed” (Br. 11) but the “threshold” in the Main
reference has been shown by any “parameter” existing in the Service Level
Agreement. Main for instance discloses that parameter such as a “start or
end” time serves as an SLA parameter (FF1). The use of a parameter such
as a “start” or “end” time serves as a threshold for a time requirement in the
Service Level Agreement. Thus, Main discloses monitoring data of a
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managed system (the data processing jobs) for an instance of a threshold
(any parameter which would exist in the Service Level Agreement) of
required performance not being satisfied (a discrepancy).
For these reasons the rejection of claim 1 is sustained. The
Appellants have provided the same arguments for claims 2-21 and the
rejection of these claims is sustained for the same reasons given above.

CONCLUSIONS OF LAW
We conclude that Appellants have not shown that the Examiner erred
in rejecting claims 1-5 and 7-8 under 35 U.S.C. § 103(a) as unpatentable
over Main and Chung.
We conclude that Appellants have not shown that the Examiner erred
in rejecting claims 6 and 9-21 under 35 U.S.C. § 103(a) as unpatentable over
Main, Chung, and Greene.

DECISION
The Examiner’s rejection of claims 1-21 is sustained.
.

AFFIRMED

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Application 10/379,179

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MP

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