Ex Parte Simitsis et al

Patent Trial and Appeal Board

Aug 24, 2016

13457093 (P.T.A.B. Aug. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/457,093 04/26/2012 Alkiviadis Simitsis
56436 7590 08/26/2016
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.
82961625 3183
EXAMINER
PARK, GRACE A
ART UNIT PAPER NUMBER
2157
NOTIFICATION DATE DELIVERY MODE
08/26/2016 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 ALKIVIADIS SIMITSIS and
WILLIAM K. WILKINSON
Appeal2015-003655
Application 13/457,093
Technology Center 2100
Before LINZY T. McCARTNEY, CARLL. SILVERMAN, and
MONICA S. ULLAGADDI, Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
Appeal2015-003655
Application 13/457,093
STATEMENT OF THE CASE
The present patent application concerns systems and techniques that
"allow users to specify the degree of nesting in the computer code produced
by a code generator." Spec. i-f 9. Claims 1, 8, and 14 are independent.
Claim 1 illustrates the claimed subject matter:
1. A system comprising:
a processor configured to:
access a graph comprising a plurality of nodes and at least
one edge, each edge associating two of the plurality of nodes, at
least some of the plurality of nodes being associated with at least
one database operation;
determine a nesting level associated with the graph,
wherein the nesting level is a setting to specify a degree of
temporary storage to be allocated for intermediate output
produced by the at least one database operation; and
construct computer code corresponding to the graph m
accordance with the nesting level.
REJECTION
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Warner et al. (US 2005/0055338 Al; March 10, 2005) ("Warner") and
Jezierski (US 2006/004 7794 Al; March 2, 2006) ("Jezierski"). 1
ANALYSIS
Claim 1
Appellants argue the Examiner erroneously concluded in the Answer
that a combination of Warner and Jezierski teaches or suggests claim l's
1 The Final Rejection incorrectly states that only claims 1-19 stand rejected
on this ground. See Final Act. 2-8.
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"determine a nesting level" limitation. See Reply Br. 2-10. First,
Appellants contend the Examiner's obviousness conclusion depends on the
Examiner's erroneous finding that Warner teaches "determining the multiple
levels of buffers to be allocated." Id. at 3-5. According to Appellants, the
cited paragraphs of Warner "say nothing about determining the multiple
levels of buffers to be allocated." Id. at 3 (emphasis and internal quotation
marks omitted). Appellants assert the cited paragraphs instead describe a
prior art problem while Warner as a whole "describes something different,
namely that each node in a tree is sequentially evaluated to determine
whether it is optimizable." Id. at 4 (internal quotation marks omitted).
Because Warner's method sequentially processes each graph node,
Appellants contend there is no need for multiple levels of buffers. See id.
We find Appellants' arguments unpersuasive. Warner discloses
processing operator trees (also called expression trees) using a "bottom-up"
approach for some operators and a "top-down" approach for others. See,
e.g., Warner i-f 11. Although Appellants' arguments largely focus on the top-
down approach to processing operator trees, the Examiner found the bottom-
up approach, combined with Jezierski's teachings, suggests claim 1 's
"determine a nesting level" limitation. See Ans. 2-3. Regarding the bottom-
up approach, the cited portions of Warner disclose "each set of intermediate
results from lower levels of the tree may be buffered into temporary storage
locations." Warner i-f 7. Warner also discloses that using the bottom-up
approach has drawbacks. These drawbacks include "the expense related to
allocating these storage locations," particularly "for complex expressions
when there are multiple levels of operators that will require multiple levels
of buffers." Id. i-fi-17, 52 (emphases added).
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Application 13/457,093
These disclosures provide sutlicient evidence to support the
Examiner's finding that Warner teaches determining multiple buffers levels
for allocation. The cited portions of Warner indicate that the bottom-up
approach requires allocating storage buffers for the intermediate results
produced by different tree operator levels and that multiple operator levels
require multiple buffer levels. See id. i-fi-17, 52. This would have suggested
to one of ordinary skill in the art that the bottom-up approach determines and
allocates the necessary buffer levels. See KSR Int 'l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007) (explaining that an obviousness analysis "can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ"); Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d
1324, 1329 (Fed. Cir. 2009) (holding that an obviousness analysis "may
include recourse to logic, judgment, and common sense available to the
person of ordinary skill that do not necessarily require explication in any
reference or expert opinion"); In re Mouttet, 686 F.3d 1322, 1331 (Fed. Cir.
2012) (citation omitted) ("A reference may be read for all that it teaches
.... ").
Second, Appellants argue that, even assuming Warner teaches
"determining the multiple levels of buffers to be allocated," Warner teaches
away from the Examiner's combination of the cited art. Reply Br. 5.
Specifically, Appellants argue that "because Warner teaches the
disadvantage of using multiple levels of buffers and ... teaches an
alternative data stream technique that avoids this disadvantage, it is
abundantly clear that Warner actually teaches away from the use of multiple
buffers." Id. (emphasis and internal quotation marks omitted).
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Application 13/457,093
We find Appellants' argument unpersuasive. "A reference may be
said to teach away when a person of ordinary skill, upon reading the
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)
Here, Warner's method uses both the top-down and bottom-down tree
processing approaches, indicating that the bottom-down approach is useful,
despite its drawbacks. See, e.g., Warner i-f 11; Fig. 4, items 410, 412. In
light of this, we disagree that Warner's teachings would discourage those of
ordinary skill in the art from using the bottom-up approach or lead them
away from the approach taken by Appellants. Cf Medichem, S.A. v. Rolabo,
S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) ("[A] given course of action
often has simultaneous advantages and disadvantages, and this does not
necessarily obviate motivation to combine.").
Third, Appellants contend the Examiner's obviousness analysis rests
on an improper construction of the term "nesting level." Reply Br. 6-8.
Appellants assert claim 1 explicitly defines "nesting level" as "a setting to
specify a degree of temporary storage to be allocated for intermediate output
produced by the at least one database operation." Id. at 7. Appellants
contend that instead of applying this definition, the Examiner improperly
concluded that the term "nesting level" means "multiple operators included
in the expression tree." Id. Appellants argue this construction removes the
word "setting" and "focus[ es] on incomplete elements in isolation ...
ignoring the context of the claims as a whole." Id. at 8. Moreover, in
Appellants' view, "multiple operators included in the expression tree" is not
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a "setting" and does not "specify a degree of temporary storage" as required
by claim 1. Id. at 7-8.
We find Appellants' arguments unpersuasive. The Examiner did not
construe "nesting level" as "multiple operators included in the expression
tree." Rather, the Examiner found that Warner's "multiple levels of
operators included in the expression tree" teaches part of the recited "nesting
level." See Ans. 3. The Examiner explained that "[d]etermining the
multiple levels of buffers to be allocated for storing the intermediate results
[produced by the multiple levels of operators]" teaches the "specify a degree
of temporary storage temporary storage to be allocated for intermediate
output produced by the at least one database operation" aspect of the recited
"nesting level." Id. The Examiner reasoned that claim 1 does not limit the
term "degree"; therefore, any degree of temporary storage satisfies this
limitation. Id. Put differently, the Examiner found Warner teaches
specifying a degree of temporary storage to be allocated for intermediate
output (the multiple buffer levels used to store the intermediate results)
produced by the at least one database operation (the operators of the operator
tree).
The Examiner also found Warner does not teach that a "nesting level
is a setting." Id. But the Examiner found Jezierski discloses configuring
temporary table space based on a configuration parameter and concluded the
combination of Warner's and Jezierski's teachings would have suggested the
recited "nesting level" to one of ordinary skill in the art. Id. Appellants'
arguments against Warner individually have not persuaded us the Examiner
erred. "[O]ne cannot show non-obviousness by attacking references
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individually where, as here, the rejections are based on combinations of
references." In re Keller, 642 F.2d 413, 426 (CCPA 1981).
Fourth, Appellants contend the Examiner's combination of Warner
and Jezierksi "makes no logical sense." Reply Br. 9. Appellants contend
the Examiner concluded it would have been obvious to modify Warner to
include a configuration parameter (the recited "setting") that specifies the
number of levels in Warner's expression tree. Id. Appellants argue in
Warner's method "it is impossible to know whether a temporary storage
location for a node is needed until that particular node is evaluated." Id. at
9-10 (internal quotation marks omitted). "Moreover, because the number of
levels would vary depending on the particular expression tree being
processed, it makes no logical sense to create a server-level configuration
parameter." Id. at 10 (internal quotation marks omitted).
We find Appellants' argument unpersuasive. Appellants' argument
assumes the Examiner's combination of Jezierski and Warner would result
in Jezierski' s configuration parameter specifying the number of levels in
Warner's expression tree. See id. at 9. This assumption rests on Appellants'
contention that the Examiner found Warner's "multiple levels of operators
included in the expression tree" teaches the recited "nesting level." Id. For
the reasons discussed above, we find this contention unpersuasive.
Moreover, the Examiner found "Jezierski discloses that temporary table
space can be configured based on [the] configuration parameter." Ans. 3
(emphasis added). In light of this, the Examiner's rejection is best
understood as concluding that the combination of Warner and Jezierski
teaches or suggests determining the degree or amount of space for the buffer
levels, not the number of levels in the expression tree.
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Fifth, Appellants contend the Examiner failed to provide articulated
reasoning sufficient to establish the Examiner's combination of Warner and
Jezierski would have been obvious to one of ordinary skill in the art. App.
Br. 9; Reply Br. 10. Appellants' conclusory argument has not persuaded us
the Examiner erred. The Examiner found that Jezierski discloses a
motivation for the proposed combination: optimizing a computer system by
modifying configuration parameters. Ans. 7. The Examiner reasoned that
the proposed combination of W am er and Jezierski "would allow the
allocation of the multiple levels of buffers to be adjusted via the
configuration parameter," resulting in an improved system. Id. This
motivation is more than sufficient to support the Examiner's combination.
For the above reasons, we sustain the Examiner's rejection of claim 1.
Because Appellants have not presented separate, persuasive patentability
arguments for claims 2, 7, 8, 12-14, and 18, we also sustain the Examiner's
rejections of these claims.
Claims 3 and 19
Dependent claim 3 recites "wherein the processor is to determine,
based on the nesting level, whether the intermediate output produced by the
at least one database operation should be produced using a nested query in
the computer code or should be stored in a temporary storage area and
retrieved therefrom." Dependent claim 19 recites a similar limitation.
Appellants argue that the cited portions of W amer do not teach or suggest
that the recited "determine" step is "based on the nesting level" or
determines whether a "nested query in the computer code" should be used as
required by claim 3. See App. Br. 12; Reply Br. 12.
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Application 13/457,093
We find Appellants' arguments persuasive. The Examiner found
Warner teaches selecting either the top-down or bottom-up processing
approach based on whether an operator is optimizable. See Final Act 4--5;
Ans. 8. This choice is not based on a "nesting level," that is, "a setting to
specify a degree of temporary storage to be allocated for intermediate output
produced by the at least one database operation." Rather, this choice is
based on whether an operator is optimizable. Accordingly, we agree with
Appellants that the Examiner erred.
Claims 4--6, 9-11, 15-17, and 20.
Dependent claims 4--6, 9-11, 15-17, and 20 concern constructing
computer code in various ways if a nesting level equals a minimum,
moderate, or maximum nesting level. See Claims App'x i-iv. Appellants
argue Warner does not teach or suggest constructing computer code based
on a nesting level. See Reply Br. 12-15. Moreover, according to
Appellants, Warner says nothing about minimum, moderate, or maximum
nesting levels. See id.
We find Appellants' arguments persuasive. The Examiner found
Warner implies the recited minimum, moderate, and maximum nesting
levels because Warner discloses switching from the bottom-up processing
approach when buffering intermediate results becomes too expensive. See
Ans. 9-12 (citing Warner i-fi-17, 52, 53, 61, 82). But the cited portions of
Warner do not support this finding. The cited portions of Warner disclose
that the bottom-up approach requires buffering intermediate results, which
may become expensive. Warner i1 7. The cited portions further disclose that
Warner's method minimizes buffering of intermediate results by, among
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Application 13/457,093
other things, using the top-down approach for operators that can be
processing in a top-down manner. See id. i-fi-1 53, 61. The cited portions of
Warner do not imply or suggest minimum, moderate, or maximum nesting
levels, nor do the cited portions imply or suggest constructing computer
code based on these levels.
DECISION
For the above reasons, we affirm the Examiner's rejections of claims
1, 2, 7, 8, 12-14, and 18. We reverse the Examiner's rejections of claims 3-
6, 9-11, 15-17, 19, and 20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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