Ex Parte Sinha

Board of Patent Appeals and Interferences

Feb 23, 2006

09425088 (B.P.A.I. Feb. 23, 2006)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte HIMANSHU S. SINHA
____________
Appeal No. 2006-0509
Application No. 09/425,088
____________
ON BRIEF
____________
Before HAIRSTON, JERRY SMITH, and DIXON, Administrative Patent Judges.
HAIRSTON, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1 through 5 and 7 through 17.
The disclosed invention relates to a service level agreement manager disposed
between a client computer system and a service provider computer system. The
service level agreement manager comprises an admission controller that controls
admission of the client computer system to a service implementation at the service
provider, a performance measurement module in communication with the admission
controller, and a specification module in communication with the admission controller
and the performance measurement module. The performance measurement module is
Appeal No. 2006-0509
Application No. 09/425,088
2
configured to measure performance of the service implementation, and to modify an
estimated capacity of the service provider based on the measured performance.
Claim 1 is illustrative of the claimed invention, and it reads as follows:
1. In a system having a client computer system and a service provider computer
system programmed with a service implementation, an apparatus comprising:
a service level agreement manager disposed between the client computer
system and the service implementation, the service level agreement manager
comprising:
an admission controller configured to control admission of the client
computer system to the service implementation using a service level agreement;
a performance measurement module in communication with the
admission controller and configured to:
measure performance of the service implementation, and
modify an estimated capacity of the service provider based on the
measured performance; and
a specification module in communication with the admission controller and
with the performance measurement module.
The references relied on by the examiner are:
Aronberg et al. (Aronberg) 6,117,188 Sept. 12, 2000
(filed Apr. 27, 1998)
Somers 6,243,396 June 5, 2001
(filed Apr. 15, 1998)
Tunnicliffe et al. (Tunnicliffe) 6,272,110 Aug. 7, 2001
(filed May 20, 1998)
Appeal No. 2006-0509
Application No. 09/425,088
3
Knight et al. (Knight) 6,442,608 Aug. 27, 2002
(filed Jan. 14, 1999)
Ball et al. (Ball) 6,446,200 Sept. 3, 2002
(filed Mar. 25, 1999)
Claims 1 through 5, 7 through 10 and 12 through 14 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Somers in view of Tunnicliffe.
Claims 11 and 15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over Somers in view of Tunnicliffe and Ball.
Claims 16 and 17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over Somers in view of Tunnicliffe, Aronberg and Knight.
Reference is made to the brief and the answer for the respective positions of the
appellant and the examiner.
OPINION
We have carefully considered the entire record before us, and we will reverse the
obviousness rejections of claims 1 through 5 and 7 through 17.
All of the claims on appeal require that the performance management module
modify an estimated capacity of the service provider based on a measured performance
of the service implementation programmed in the service provider computer system.
The examiner acknowledges (answer, page 4) that the service level agreement
in Somers between an authority and a customer (column 10, line 66 through column 11,
line 48) “does not explicitly teach modifying an estimated capacity . . . of the service
Appeal No. 2006-0509
Application No. 09/425,088
4
provider based on the measured performance.” According to the examiner (answer,
page 4), “Tunnicliffe teaches a system for measuring performance of a service
implementation and modifying an estimated capacity of a service provider based on the
measured performance (col. 6, lines 53-67 and col. 7, lines 1-3).” Based upon the
teachings of Tunnicliffe, the examiner concludes (answer, page 4) that “[i]t would have
been obvious to one of ordinary skill in the Computer Networking art at the time of the
invention to combine the teachings of Somers regarding a service level agreement
implementation with the teachings of Tunnicliffe regarding modifying an estimated
capacity based on the measured performance because changing an estimated capacity
provides more flexibility for clients (Tunnicliffe col. 1, lines 11-35).”
Appellant argues (brief, page 8) that “the mere fact that Tunnicliffe discloses
determining a short-term demand on a network does not mean that Tunnicliffe discloses
or suggest[s] modifying an estimated capacity of the service provider based on the
measured performance,” and that “the alleged motivation (i.e., to provide more flexibility
for clients) is merely a conclusory statement regarding an alleged benefit of the
combination.”
We agree with appellant’s arguments. Nothing in Tunnicliffe teaches or would
have suggested to one of ordinary skill in the art modifying an estimated capacity of the
service provider based on a measured performance of a service implementation. The
mere speculation of the examiner as to the benefit (i.e., “more flexibility for clients”) of
Appeal No. 2006-0509
Application No. 09/425,088
5
the applied prior art cannot serve as the basis of a finding of obviousness. Only the
objective teachings of the prior art or knowledge generally available to one of ordinary
skill in the art can be used by the examiner in an obviousness determination. See In re
Lee, 277 F.3d 1338, 1344, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002). In summary, the
35 U.S.C. § 103(a) rejection of claims 1 through 5, 7 through 10 and 12 through 14 is
reversed because a prima facie case of obviousness has not been established by the
examiner.
The 35 U.S.C. § 103(a) rejection of claims 11 and 15 is reversed because the
teachings of Ball do not cure the noted shortcomings in the teachings of Somers and
Tunnicliffe.
The 35 U.S.C. § 103(a) rejection of claims 16 and 17 is reversed because the
teachings of Aronberg and Knight do not cure the noted shortcomings in the teachings
of Somers and Tunnicliffe.
DECISION
The decision of the examiner rejecting claims 1 through 5 and 7 through 17
under 35 U.S.C. § 103(a) is reversed.
Appeal No. 2006-0509
Application No. 09/425,088
6
REVERSED
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JERRY SMITH ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOSEPH L. DIXON )
Administrative Patent Judge )
KH/taw
Appeal No. 2006-0509
Application No. 09/425,088
7
VERIZON CORPORATE SERVICES GROUP INC.
C/O CHRISTIAN R. ANDERSEN
600 HIDDEN RIDGE DRIVE
MAILCODE HQEO3H14
IRVING, TX 75038