Ex Parte Stolyar

Patent Trial and Appeal Board

Dec 14, 2015

12801893 (P.T.A.B. Dec. 14, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/801,893 06/30/2010
30594 7590 12/16/2015
HARNESS, DICKEY & PIERCE, PLC
P.O. BOX 8910
RESTON, VA 20195
FIRST NAMED INVENTOR
Aleksandr Stolyar
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.
29250-002493/US 7939
EXAMINER
CHOUDHURY, AZIZUL Q
ART UNIT PAPER NUMBER
2453
NOTIFICATION DATE DELIVERY MODE
12/16/2015 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):
dcmailroom@hdp.com
gyacura@hdp.com
pshaddin@hdp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEKSANDR STOL Y AR 1
Appeal2013-011023
Application 12/801, 893
Technology Center 2400
Before BRUCE R. WINSOR, DANIEL N. FISHMAN, and
AMBER L. HAGY, Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 1-5, 13-15, and 18-20.2 We have jurisdiction under 35 U.S.C.
§ 6(b ).
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner has erred. As discussed herein, we concur with
1 Appellant identifies Alcatel-Lucent USA Inc. as the real party in interest.
(App. Br. 3.)
2 Claims 6-12, 16, and 17 are objected to as being dependent upon a rejected
base claim, but are indicated to be "allowable if rewritten in independent
form ... "(Final Act. 2), and are not before us on appeal.
Appeal2013-011023
Application 12/801,893
Appellant's contentions the Examiner erred in rejecting claims 1-5, 13-15,
and 18-20, and we reverse.
Claims 1 and 15, reproduced below with disputed limitations
italicized, are exemplary of the claimed subject matter:
1. A method of routing requests within a system having a
plurality of server pools, the method comprising:
receiving a request at the system;
first determining a first value associated with a first
request type of the received request, the first value modeling a
number of requests of the first request type in a virtual queue;
second determining probabilities of routing based on the
first value and probabilities of rerouting for further processing,
the second determining being peiformed without determining
an input rate of received requests of the first request type; and
routing the received request to at least one of the plurality
of server pools based on the probabilities of routing.
15. A method of controlling a routing system, the method
compnsmg:
receiving a request having a first request type, the first
request type being associated with a first value, the first value
modeling a number of requests of the first request type in a
virtual queue;
updating the first value periodically based on a mean
service time to process the request and at least a second value
associated with a second request type, the updating being
performed without determining an input rate of received
requests of the first request type and, the second value modeling
a number of requests of the second request type in a virtual
queue; and
routing the request based on the updating.
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Appeal2013-011023
Application 12/801,893
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Ahuja
Blythe
US 6,175,869 Bl
US 7 ,207 ,043 B2
REJECTION
Jan. 16,2001
Apr. 17, 2007
Claims 1-5, 13-15, and 18-20 stand rejected under 35 U.S.C § 103(a)
as being unpatentable over Blythe and Ahuja. (Final Act. 3-12.)
ANALYSIS
A. Claim 1
The Examiner relies on the combination of Blythe and Ahuja as
teaching or suggesting the disputed limitation in claim 1. The Examiner
concedes Blythe "does not explicitly cite the claimed determination of
probabilities of routing and routing based on the probabilities," but finds
"[ w ]ithin Ahuja 's disclosure, it is taught how requests are routed based on a
probabilistic routing strategy (probability of routing)." (Final Act. 4; see
also Ans. 6-7.) The Examiner further finds "[t]he probabilistic routing
strategy can also depend upon chance of server responsiveness and
redirecting (rerouting) based on that chance (probability of rerouting)."
(Ans. 7 citing Ahuja col. 2, 11. 37-38, col. 3, 1. 11.)
Appellant argues, however, that although Ahuja does disclose "a
probabilistic routing strategy" (App. Br. 18), and also discloses rerouting
requests that were directed to non-responsive servers (App. Br. 18-19),
Ahuja does not teach or suggest "determining probabilities of routing based
on . .. probabilities of rerouting for further processing," as recited in claim 1
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Appeal2013-011023
Application 12/801,893
(emphasis added). (App. Br. 17-19; Reply Br. 4--5.) We are persuaded by
Appellant's argument. In particular, we note that rerouting requests (due to,
for example, non-responsive servers) according to a probabilistic routing
strategy, as disclosed by Ahuja (e.g., col. 3, 11. 10-12), is not the same as
determining probabilities of routing "based on ... probabilities of
rerouting," as recited in claim 1. Rather, as Appellant correctly notes, Ahuja
discloses a probabilistic routing strategy based on average response times,
and does not disclose taking into consideration a "probability of rerouting"
as part of that routing strategy. (App. Br. 17-18.) To the extent the
Examiner's rejection finds the contrary (see Ans. 7), we do not find support
for such finding in the disclosure cited by the Examiner. (Ans. 7-8 citing
Ahuja col. 2, 11. 22-25, 37-38, col. 3, 1. 11, col. 5, 11. 15, 50-56.) We,
therefore, concur the Examiner erred in finding the combination of Blythe
and Ahuja teaches or suggests the disputed limitation of claim 1.
Accordingly, we will not sustain the Examiner's rejection of
independent claim 1 or the rejection of claims 2-5, 13, and 14, which
depend from claim 1.
B. Claim 15
According to its plain language, the disputed limitation in claim 15
requires "updating the first value periodically" based on two
considerations-"[ 1] a mean service time to process the request and [2] at
least a second value associated with a second request type" (emphasis
added). Appellant argues the Examiner has failed to find the cited art
discloses "updating the first value periodically" based on both portions of
the disputed limitation, focusing in particular on the Examiner's failure to
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Appeal2013-011023
Application 12/801,893
find the prior art teaches or suggests updating "based on ... at least a second
value associated with a second request type." (App. Br. 15-16.)
The Examiner relies, however, on a different reading of claim 15,
contending "the claim does not clearly indicate what the relationship of the
second value and its second request type is to the claimed first value, first
request type or pool( s ). It merely indicates that there is some [association]."
(Ans. 5 (emphasis added).) We conclude the Examiner's construction of
claim 15-which separates the phrase "at least a second value associated
with a second request type" out of the "updating" portion of the limitation-
is not within the broadest reasonable construction of the claim. We agree
with Appellant that claim 15, properly construed, requires "updating the first
value periodically based on ... at least a second value associated with a
second request type." (App. Br. 16.)
The Examiner's findings regarding the teachings of the prior art fall
with the Examiner's erroneous claim construction. That is, in light of the
unreasonably broad construction of claim 15 adopted by the Examiner as
requiring only "some association" between a second request type and a first
request type (Ans. 5), the Examiner has not made findings that the cited
references teach or suggest the disputed limitation of claim 15, as properly
construed.
Accordingly, we will not sustain the Examiner's rejection of
independent claim 15 or the rejection of claims 18-20, which depend from
claim 15.
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Appeal2013-011023
Application 12/801,893
DECISION
For the above reasons, the Examiner's rejection of claims 1-5, 13-15,
and 18-20 is reversed.
REVERSED
kis
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