Ex Parte Tippetts

Patent Trial and Appeal Board

Feb 5, 2019

13479502 (P.T.A.B. Feb. 5, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/479,502 05/24/2012
22879 7590 02/07/2019
HP Inc.
3390 E. Harmony Road
Mail Stop 35
FORT COLLINS, CO 80528-9544
FIRST NAMED INVENTOR
Ronald Tippetts
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.
82976166 7333
EXAMINER
BATAILLE, FRANTZ
ART UNIT PAPER NUMBER
2677
NOTIFICATION DATE DELIVERY MODE
02/07/2019 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):
ipa.mail@hp.com
barbl@hp.com
yvonne.bailey@hp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD TIPPETTS 1
Appeal2018-006800
Application 13/479,502
Technology Center 2600
Before CAROLYN D. THOMAS, JOSEPH P. LENTIVECH, and
SCOTT RAEVSKY, Administrative Patent Judges.
RAEVSKY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1-3, 5-9, 15, 17, 18, 20-22, and 24--
29, all the pending claims in the present application (see Claims Appendix).
We have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART and, pursuant to 37 C.F.R. § 41.50(b), enter a
new ground of rejection.
1Appellant names Hewlett-Packard Development Company, LP as the real
party in interest (App. Br. 2).
Appeal2018-006800
Application 13/479,502
STATEMENT OF THE CASE
Appellant's invention generally relates to processing a print job where
a distribution strategy is determined for how a print job is to be distributed to
a plurality of image processors. See Abstract. Claim 1 is illustrative:
1. A method of processing a print job, the method
compnsmg:
determining, by a controller, an image processor
distribution strategy of how a print job is to be distributed to
multiple image processors of a plurality of image processors for
image processing based on a first predetermined rule;
controlling distribution of the print job to the
multiple image processors of the plurality of image processors
using the determined image processor distribution strategy for
the print job;
receiving from the multiple image processors an
image processed print job;
determining, by the controller, a printer
distribution strategy of how the image processed print job is to
be distributed to a plurality of printers based on a second
predetermined rule; and
controlling distribution of the image processed
print job to a printer of the plurality of printers using the
determined printer distribution strategy for the image processed
print job.
App. Br. 23 (Claims Appendix).
Appellant appeals the following rejections:
RI. Claims 1-3, 5, 6, 8, 9, 24, and 29 are rejected under pre-AIA 35
U.S.C. § I03(a)2 as being unpatentable over Shestak et al. (US
2 Because Appellant filed the application prior to March 16, 2013, the
version of 35 U.S.C. § 103 we apply here is the one preceding the changes
made by the America Invents Act. See Leahy-Smith America Invents Act,
Pub. L. No. 112-29, 125 Stat. 284,293, § 3(n) (2011).
2
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Application 13/479,502
2009/0244582 Al, publ. Oct. 1, 2009) and Gregory (US 2005/0146742 Al,
pub 1. July 7, 2005); and
R2. Claims 7, 15, 17, 18, 20-22, and 25-28 are rejected under 35
U.S.C. § I03(a) as being unpatentable over Shestak, Gregory, and Morishita
et al. (US 8,141,088 B2, publ. Mar. 20, 2012).
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
ANALYSIS
Claims 1, 3, 5, 6, 8, and 24
First, Appellant contends that Shestak and Gregory collectively fail to
teach or suggest "determining, by a controller, an image processor
distribution strategy" and "determining, by the controller, a printer
distribution strategy." App. Br. 12. Specifically, Appellant contends
"neither [Shestak nor Gregory] mention a single controller to control
different distribution strategies." Id. ( emphasis added).
Here, the Examiner is relying on the combined teachings of Shestak
and Gregory. Specifically, the Examiner finds, and we agree, that Shestak
teaches "an image processor distribution strategy" and that Gregory teaches
"determining how to distribute the print job to different printers." Ans. 4. In
the Final Office Action, the Examiner also found that "it would have been
obvious for one of ordinary skill in the art to have modified [the] system of
Shestak et al[.] with [the] concept of determining a printer distribution
strategy ... of Gregory." Final Act. 15 ( emphasis added).
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Therefore, Appellant's arguments attacking Shestak or Gregory in
isolation do not persuasively rebut the underlying factual findings and
ultimate legal conclusion of obviousness made by the Examiner, which are
based upon the combined teachings and suggestions of the cited references.
One cannot show non-obviousness by attacking references individually,
where the rejections are based on combinations of references. In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
With that in mind, we find that Appellant's argument does not take
into account what the various collective teachings of the prior art would
have suggested to one of ordinary skill in the art and is therefore ineffective
to rebut the Examiner's prima facie case of obviousness. See In re Keller,
642 F.2d 413,425 (CCPA 1981) ("The test for obviousness is not whether
... the claimed invention must be expressly suggested in any one or all of
the references. Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.").
Second, Appellant contends that Shestak and Gregory collectively fail
to teach or suggest "determining ... an image processor distribution strategy
of how a print job is to be distributed to multiple image processors of a
plurality of image processors." App. Br. 13. Specifically, Appellant argues
that Shestak teaches "a sheetside is distributed to the best processor, i.e., a
single processor." Id. Therefore, Appellant argues, "there is no teaching or
suggestion in Shestak about how an individual print job is 'distributed to
multiple image processors."' Id.
The Examiner finds, and we agree, that Shestak teaches "[ s ]heetside
description files are assigned to each compute node 106 of [a] plurality of
RIP nodes (multiple image processors of a plurality of image processors)."
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Ans. 4. Specifically, Shestak discloses "a print job compris[ es] multiple
sheetsides" and a "Head Node 102 ... select[s] the best processor of the
plurality of compute nodes 106 to process a next sheetside." Shestak ,r,r 12,
49 ( emphasis added). As such, we agree with the Examiner that Shestak
teaches or suggests determining a sheetside description files processing
distribution strategy to a plurality of RIP nodes. Ans. 4.
Accordingly, we sustain the Examiner's rejection of claim 1.
Appellant does not argue separate patentability for dependent claims 3, 5, 6,
8, and 24. We therefore also sustain the Examiner's rejection of claims 3, 5,
6, 8, and 24.
Claims 2, 17, 18, and 20-22
Appellant contends that Shestak and Gregory fail to teach or suggest
"determining a further distribution strategy of how the print job is to be
distributed to the plurality of image processors for image processing based
on the first predetermined rule and the generated data," as recited by claim 2.
App. Br. 16. Specifically, Appellant argues "the bitmap of Shestak in no
way is the same as the generated data in claim 2" and "paragraph [0079] [ of
Shestak] makes no mention of selection of a processor based on the bitmap."
Id. at 17.
The Examiner finds, and we agree, that "Shestak teaches selecting the
processor with the shortest mean completion time using [a] stochastic
mathematical model (first predetermined rule)" and that "[Shestak's] system
will select another processor based on its shorter mean completion time."
Ans. 5 (citing Shestak ,r,r 79, 84). Specifically, Shestak teaches "where both
processors 601 and 602 have zero probability of missing deadline 606,
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Application 13/479,502
processor A 601 may be selected because its mean completion time 603 is
shorter than the mean completion time 604 of processor B 602." Shestak ,r
79. Shestak further explains,
[T]o dispatch or assign a sheetside to a processor
requires accounting for the possible completion
times for each of the queued sheetsides for a
processor. Thus a "considered" sheetside being
evaluated for possible assignment or dispatch to a
processor requires evaluation of the current PDf
[probability distribution function] for other
sheetside previously assigned to the processors.
Id. ,r,r 84 ( emphasis added), 142 ( defining PD±). Thus, Shestak teaches
monitoring image processing of sheetsides to generate data on completion
times and distributing a further sheetside to a processor based on a
probability and completion time of that processor.
We therefore agree with the Examiner that Shestak teaches or
suggests the disputed limitation. Appellant fails to persuasively distinguish
claim 2 's "determining a further distribution strategy ... based on the first
predetermined rule and the generated data" from Shestak's processor
selection based on zero probability and completion time.
Accordingly, we sustain the Examiner's rejection of claim 2.
For similar reasons, we find unpersuasive Appellant's argument that
Shestak and Gregory fail to teach or suggest claim 1 7 's "redistribute, during
image processing, the print job based on a further distribution strategy."
Appellant contends that Shestak contains "no teaching or suggestion that
such [ re ]distribution occurs 'during image processing."' Id. at 15-16.
However, because Shestak teaches monitoring image processing of
sheetsides to generate data on completion times and distributing a further
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sheetside to a processor based on those completion times, Shestak also
teaches or suggests redistributing the print job based on a further distribution
strategy during image processing.
Accordingly, we also sustain the Examiner's rejection of claims 17,
18, and 20-22.
Claim 7
Appellant contends that "merely 'varying the virtual processor
numbers registered,"' as taught by Morishita, "does not at all teach or
suggest 'varying the number of processors ... to process the print job," as
recited in claim 7. App. Br. 19. We agree with Appellant.
Here, the Examiner finds that Morishita discloses "[the] concept of
varying the virtual processor numbers according to a ratio of processing time
of the print job in the queue." Ans. 7 (citing Morishita 8:63---65). But we
agree with Appellant that Morishita's "varying the virtual processor
numbers registered" does not teach "varying the number of processors . ..
to process the print job," as recited in claim 7. (Emphasis added.)
We note the Examiner has not relied on Shestak or Gregory to teach
this element. Accordingly, based on the record before us, we do not sustain
the Examiner's obviousness rejection of claim 7.
Claims 9, 15, and 25-29
First, Appellant contends "as demonstrated above in regards to claim
1, Shestak and Gregory in any combination fail to teach or suggest
'determin[ing], at a controller, an image processor strategy ... ' and
'receiv[ing] at the controller, an image processed print job." Id. at 15. For
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similar reasons discussed above with respect to claim 1, Appellant's
arguments attacking Shestak or Gregory in isolation do not persuasively
rebut the underlying factual findings and ultimate legal conclusion of
obviousness made by the Examiner, which are based upon the combined
teachings and suggestions of the cited references. One cannot show non-
obviousness by attacking references individually, where the rejections are
based on combinations of references. Merck, 800 F.2d at 1097.
Second, Appellant contends that Shestak and Gregory fail to teach or
suggest "control[ling], during image processing, distribution of the print job
to the multiple image processors." App. Br. 15. "Rather," Appellant argues,
"such processing in Shestak occurs before any image processing occurs."
Id. at 16. This argument is similar to the argument made supra regarding
claims 2 and 1 7, which we found unpersuasive. However, with respect to
claim 9, we note that where a claim ( and its terms) is so indefinite that
"considerable speculation as to the meaning of the terms employed and
assumptions as to the scope of such claims" is needed, it would be
imprudent for us to pass judgment on such a rejection (under§ 103). See In
re Steele, 305 F.2d 859, 862 (CCPA 1962) (holding that the Examiner and
the Board were wrong in relying on what at best were speculative
assumptions as to the meaning of the claims and basing a rejection under 35
U.S.C. § 103 thereon).
For example, claim 9 recites, among other things, "control, during
image processing, distribution of the print job to the multiple image
processors." However, the Specification suggests that such "image
processing" take place after the print job is distributed to the multiple
processors. See Spec. 10:9--16 ("At block 40, the controller 18 controls the
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Application 13/479,502
distribution of the print job to the image processors . . . . At block 42, the
controller 18 monitors the image processing performed by the image
processors.").
So, it begs the question-how can the device control distribution to
the processors "during image processing" if the processor is the very thing
performing image processing? In other words, either distribution to the
processors must precede image processing or the claim must be referring to
some other type of "image processing." As such, we conclude that the
aforementioned limitation in claim 9 is indefinite at least because it is
amenable to multiple plausible claim constructions. See Ex parte Miyazaki,
89 USPQ2d 1207, 1211 (BP AI 2008) (precedential) ("[I]f a claim is
amenable to two or more plausible claim constructions, the USPTO is
justified in requiring the applicant to more precisely define the metes and
bounds of the claimed invention by holding the claim unpatentable under 35
U.S.C. § 112, second paragraph, as indefinite."); see also In re Wilson, 424
F.2d 1382, 1385 (CCPA 1970) ("Ifno reasonably definite meaning can be
ascribed to certain terms in the claim, the subject matter does not become
obvious-the claim becomes indefinite.").
Therefore, using our authority under 37 C.F.R. § 41.50(b), we reject
independent claim 9, and claims 15 and 25-29 which depend therefrom, as
being indefinite under 35 U.S.C. § 112, second paragraph (pre-AIA).
Accordingly, we are constrained to reverse, proforma, the Examiner's
rejection of claims 9, 15, and 25-29 under 35 U.S.C. § 103(a). We note that
this is a procedural reversal rather than one based upon the merits of the §
103 rejection.
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DECISION
We affirm the Examiner's§ 103 rejection of claims 1-3, 5, 6, 8, 17,
18, 20-22, and 24.
We reverse the Examiner's§ 103 rejection of claim 7.
We reverse the Examiner's§ 103 rejection of claims 9, 15, and 25-29
and, pursuant to our authority under 37 C.F.R. § 4I.50(b), we enter a new
ground of rejection for claim 9 under 35 U.S.C. § 112, second paragraph.
Section 4I.50(b) provides "[a] new ground of rejection pursuant to
this paragraph shall not be considered final for judicial review." Section
41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
( 1) Reopen prosecution. Submit an
appropriate amendment of the claims so rejected or
new Evidence relating to the claims so rejected, or
both, and have the matter reconsidered by the
examiner, in which event the prosecution will be
remanded to the examiner. The new ground of
rejection is binding upon the examiner unless an
amendment or new Evidence not previously of
Record is made which, in the opinion of the
examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner
reject the claims, appellant may again appeal to the
Board pursuant to this subpart.
(2) Request rehearing. Request that the
proceeding be reheard under § 41.52 by the Board
upon the same Record. The request for rehearing
must address any new ground of rejection and state
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with particularity the points believed to have been
misapprehended or overlooked in entering the new
ground of rejection and also state all other grounds
upon which rehearing is sought.
Further guidance on responding to a new ground of rejection can be
found in MPEP § 1214.01.
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; 37 C.F.R. § 4I.50(b)
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