Ex Parte Stich et al

Patent Trial and Appeal Board

Feb 29, 2016

12715814 (P.T.A.B. Feb. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121715,814 03/02/2010
21839 7590 03/02/2016
BUCHANAN, INGERSOLL & ROONEY PC
POST OFFICE BOX 1404
ALEXANDRIA, VA 22313-1404
FIRST NAMED INVENTOR
Christian M. STICH
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.
1034193-000191 9520
EXAMINER
BUTLER, SARAI E
ART UNIT PAPER NUMBER
2114
NOTIFICATION DATE DELIVERY MODE
03/02/2016 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):
ADIPDOC 1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTIAN M. STICH, MARCEL DIX, and
MATS A. PETTERSON
Appeal2014-002233
Application 12/715,8141
Technology Center 2100
Before ELENI MANTIS MERCADER, NORMAN H. BEAMER, and
JOHN D. HAMANN, Administrative Patent Judges.
HAMANN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 1---6. We have jurisdiction under
35 U.S.C. § 6(b). We affirm.
THE CLAIMED INVENTION
Appellants claimed invention relates to distributed computing systems
having multiple physical computers, each of which can act as a server
hosting a service. Spec. i-f 2. "To make the system[ s] redundant, at least one
of the physical computers, in addition to containing the server functionality
1 According to Appellants, the real party in interest is ABB Research Ltd.
App. Br. 1.
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Application 12/715,814
of a first service, also contains a virtual machine having the server
functionality of a second service." Abstract.
Of the claims on appeal, claim 1 is illustrative of the subject matter of
the appeal and is reproduced below.
1. A distributed computer system which contains at least
two physical processing units and at least two services, the
system comprising:
a) plural physical processing units, each equipped with
functionality of a server for at least one of plural services; and
b) at least one physical processing unit containing, in
addition to server functionality of a first service, a virtual
machine operating as a new processing unit with its own
identity and having server functionality of a second service to
provide redundancy by configuring the second service as a
redundant part of its original on the virtual machine.
REJECTION ON APPEAL
The Examiner rejected claims 1---6 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Takamoto et al. (US 20071017 4658
Al; July 26, 2007) (hereinafter "Takamoto") and Dinker et al. (US
7,139,925 B2; Nov. 21, 2006) (hereinafter "Dinker").
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
contentions that the Examiner erred. In reaching our decision, we consider
all evidence presented and all arguments made by Appellants. We disagree
with Appellants' arguments, and we incorporate herein and adopt as our
own: ( 1) the findings and reasons set forth by the Examiner in the
December 21, 2012 Final Office Action (Final Act. 2---6) and (2) the reasons
and rebuttals set forth in the Examiner's Answer (Ans. 3-8). We
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Application 12/715,814
incorporate such findings, reasons, and rebuttals herein by reference unless
otherwise noted. However, we highlight and address specific findings and
arguments for emphasis.
Whether Takamoto teaches away from using Dinker 's redundancy
Appellants argue Takamoto teaches away from using a redundancy
scheme having spare servers that are functional ready for when an active
server fails. See App. Br. 4--5. Specifically, Appellants argue Takamoto
teaches using spare servers that become functional (i.e., configured with
licensed software) only when an active server fails. See id. Appellants
assert waiting to configure the spare servers reduces the required software
licensing fees and reduces costs, in accordance with Takamoto's teachings.
See App. Br. 4--5; Reply Br. 5; see also Takamoto Abstract.
Appellants next contend that combining the teachings of Takamoto
and Dinker, as the Examiner does, requires replacing Takamoto's non-
functional spare server with afunctional server, against Takamoto's
teachings. See App. Br. 5. Furthermore, Appellants contend this
replacement would increase costs, and thus, make Takamoto "incapable of
achieving its stated objective." See id.; see also Reply Br. 4--6 (contending
one of skill in the art understands that modifying Takamoto to incorporate
Dinker's redundancy inevitably would involve an increase in the number of
devices and licensing fees).
The Examiner finds Takamoto does not teach away from using
Dinker's redundancy. See Ans. 6. The Examiner explains that Appellants'
focus on spare servers and redundancy is misplaced - Takamoto is cited
instead for having two physical active servers without regard to reducing
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Application 12/715,814
spare servers or otherwise. See Ans. 7. Specifically, the Examiner finds
Takamoto teaches having multiple physical servers (at least two physical
processing units) with each having their own virtual server. See Ans. 6
(citing Takamoto Fig. 2, i-f 33). Additionally, the Examiner finds
Appellants' premise that modifying Takamoto with Dinker increases the
required number of servers and cost is mere argument unsupported by
evidence. See id.
We agree with the Examiner and find Appellants have not established
that Takamoto teaches away from using the redundancy scheme taught by
Dinker because Appellants have failed to show "a person of ordinary skill,
upon reading [Takamoto] ... would be led in a direction divergent from the
path that was taken by [Appellants]." See In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994). To the extent Takamoto teaches reducing the number of
servers, it does so for spare servers and not active servers. See, e.g.,
Abstract (teaching reducing the number of spare servers to save on licensing
fees for software on the spare servers). Moreover, Takamoto's teachings do
not teach away from providing redundancy without increasing the number of
servers, as taught in Dinker. See In re Fulton, 391 F.3d 1195, 1201 (Fed.
Cir. 2004).
We also agree with the Examiner that Appellants' contention that
modifying Takamoto with Dinker increases the number of servers is mere
argument unsupported by evidence. For example, Dinker's redundancy
teachings can be combined with the existing active physical servers to render
the claims obvious. See Takamoto i-f 32, Fig. 1 (showing multiple physical
active servers 203 each hosting virtual servers 207); Dinker col. 1, 11. 33-36,
42-52 (teaching maintaining redundant data for multiple processes on the
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Application 12/715,814
same or different actual or virtual locations); see also Ans. 8 (finding Dinker
teaches that the redundant server can be at a different virtual location and
have its own identity) (citing Dinker col. 1, 11. 42-52).
Accordingly, we agree with the Examiner and find the combination of
Takamoto and Dinker teaches, inter alia, (i) "at least one physical
processing unit containing, in addition to server functionality of a first
service, a virtual machine operating as a new processing unit with its own
identity and having server functionality of a second service to provide
redundancy by configuring the second service as a redundant part of its
original on the virtual machine," as recited in claim 1 and (ii) "integrating
the virtual machine formed with the server functionality in the computer
system as a first redundant server operating as a new processing unit with its
own identity," as recited in claim 5.
Redundant Physical Processing Units
In trying to distinguish Takamoto, Appellants contend "that in the
context of a communication network, redundant devices represent additional
components that are exact copies of other components existing on the
network." App. Br. 6. Appellants, however, provide no evidence supporting
this contention, only attorney argument. See In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974) ("Attorney's argument in a brief cannot take the place of
evidence."). Furthermore, requiring additional servers is contrary to the
claims, which, inter alia, simply set forth having one of the existing physical
processing units equipped with a virtual machine host a service that also is
hosted on another of the physical processing units to provide some
redundancy. See Claims Appendix, claims 1, 5.
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Application 12/715,814
We are not apprised by Appellants of any error in the Examiner's
findings and reasoning based on this argument.
Rationale to Combine Takamoto 'sand Dinker's Teachings
Appellants argue one of skill in the art would not combine the
teachings of Takamoto and Dinker because there is no rational basis to do so
for achieving Appellants' claimed results. See App. Br. 7. Appellants also
argue that this combination would render Takamoto incapable of achieving
its designed-for objective of reducing licensing fee costs. See id.
The Examiner finds it would have been obvious to one of ordinary
skill in the art to modify Takamoto with Dinker' s teachings to render the
claims obvious, including because using redundant virtual servers is known
in the art, and such modifications would have allowed two servers to operate
with redundancy. See Final Act. 3 (citing Dinker col. 1, 11. 33-36, 42-52).
We are not apprised of any error in the Examiner's findings and
rationale to combine. Further, as discussed above, we disagree with
Appellants that combining Takamoto and Dinker would render Takamoto
incapable of reaching its designed-for objective because adding servers is
not required.
CONCLUSION
Based on the above reasoning and findings, we sustain the Examiner's
rejection of claims 1 and 5. We also sustain the Examiner's rejection of
claims 2--4 and 6 based on the same reasoning and findings above, as well as
because Appellants' arguments for these dependent claims focus on
Takamoto's teachings alone (App. Br. 8) rather than the combination's
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teachings, which include Dinker' s teachings for providing redundancy, as
discussed above. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986) (finding non-obviousness cannot be established by attacking
references individually); In re Keller, 642 F.2d 413, 425 (CCPA 1981)
(finding the relevant inquiry is whether the claimed subject matter would
have been obvious to those of ordinary skill in the art in light of the
combined teachings of the references).
DECISION
We affirm the Examiner's rejection of claims 1---6.
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
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