International Business Machines Corporation

Patent Trials and Appeals Board

Apr 29, 2021

2019006934 (P.T.A.B. Apr. 29, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/953,998 11/30/2015 Arkadiusz W. Biegun DE920150142US1 3932
11601 7590 04/29/2021
IBM Corporation - Patent Center
1701 North Street
B/256-3
Endicott, NY 13760
EXAMINER
LABUD, JONATHAN R
ART UNIT PAPER NUMBER
2196
NOTIFICATION DATE DELIVERY MODE
04/29/2021 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):
edciplaw@us.ibm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ARKADIUSZ W. BIEGUN, TOMASZ D. CHMIELECKI,
BARTLOMIEJ T. MALECKI, and KONRAD K. SKIBSKI
____________

Appeal 2019-006934
Application 14/953,998
Technology Center 2100
____________

Before JOSEPH L. DIXON, CATHERINE SHIANG, and
JAMES W. DEJMEK, Administrative Patent Judges.

SHIANG, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–25, which are all the claims pending and rejected in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42
(2018). Appellant identifies International Business Machines Corporation as
the real party in interest. Appeal Br. 3.

Appeal 2019-006934
Application 14/953,998

2
STATEMENT OF THE CASE
Introduction
The present invention relates to “diagnostic software for monitoring
the performance of threaded applications.” Spec. ¶ 1.
An ability to monitor the performance of a threaded
application is provided. A thread that is executing is detected,
wherein the thread is spawned by a threaded application. A
thread class of the thread is determined. A performance metric
of the thread is measured. A trend that describes a consumption
of the performance metric as a function of percent execution time
is interpolated. In response to determining that a threshold
associated with the performance metric is exceeded based on a
comparison of the trend to a trend template that is associated with
the performance metric, an alert is issued. The alert identifies
the thread as an abnormally executed thread in order to trigger a
corrective action that improves a performance of a computing
device that is configured to execute the threaded application.

Spec. Abstr. Claim 1 is exemplary:
1. A method comprising:
detecting, by one or more computer processors, a thread that
is executing, wherein the thread is spawned by a threaded
application;
determining, by one or more computer processors, a thread
class of the thread;
measuring, by one or more computer processors, a
performance metric of the thread based on the thread class;
interpolating, by one or more computer processors, a trend
that describes a consumption of the performance metric as a
function of percent execution time, wherein a percent execution
time is a percentage of a total execution time of the thread; and
in response to determining, by one or more computer
processors, that a threshold associated with the performance
metric is exceeded based on a comparison of the trend to a trend
template that (i) is associated with the performance metric and
(ii) depicts a baseline trend as a function of percent execution
Appeal 2019-006934
Application 14/953,998

3
time, issuing, by one or more computer processors, an alert
identifying the thread as an abnormally executed thread in order
to trigger a corrective action that improves a performance of a
computing device that is configured to execute the threaded
application.

References and Rejections2
Claim(s)
Rejected
35 U.S.C. § References
1–5, 9, 12, 13,
16–18, 21–23
103 Sura, Compiler Techniques for High Performance
Sequentially Consistent Java Programs, PPoPP
’05: Proceedings of the tenth ACM SIGPLAN
symposium on Principles and practice of parallel
programming (2005), Diep, Analyzing performance
characteristics of OLTP cached workloads by
linear interpolation 1–10 (2002), and Goebel (US
6,216,066 B1, April 10, 2001)
6, 7, 19, 24 103 Sura, Diep, Goebel, and Leykekhman, MATH 3795
Lecture 14. Polynomial Interpolation 1–22 (2008)
8, 20, 25 103 Sura, Diep, Goebel, Leykekhman, and Lowe (US
6,714,717 B1, March 30, 2004)3
10, 11, 15 103 Sura, Diep, Goebel, and McGee (US 2003/0088542
A1, May 8, 2003)4
14 103 Sura, Diep, Goebel, and Muscarella (US 8,185,906
B2, May 22, 2012)

ANALYSIS

2 Throughout this opinion, we refer to the (1) Final Office Action dated
Nov. 2, 2018 (“Final Act.”); (2) Appeal Brief dated April 3, 2019 (“Appeal
Br.”); (3) Examiner’s Answer dated Sept. 4, 2019 (“Ans.”); and (4) Reply
Brief dated Sept. 25, 2019 (“Reply Br.”).
3 The heading of the rejection for claims 8, 20, and 25 omits Leykekhman.
Final Act. 18. That omission appears to be a typographical error, as the
claims depend from claims 6, 19, and 24, which are rejected over Sura,
Diep, Goebel, and Leykekhman. Final Act. 17.
4 The heading of the rejection lists the publication number of McGee
incorrectly (Final Act. 20), which appears to be a typographical error.
Appeal 2019-006934
Application 14/953,998

4
Obviousness
On this record, the Examiner did not err in rejecting claim 1.
We have reviewed and considered Appellant’s arguments, but such
arguments are unpersuasive. To the extent consistent with our analysis
below, we adopt the Examiner’s findings and conclusions in (i) the action
from which this appeal is taken and (ii) the Answer.5

I
Appellant contends Diep does not teach “interpolating . . . a trend that
describes a consumption of the performance metric as a function of percent
execution time, wherein a percent execution time is a percentage of a total
execution time of the thread,” as recited in claim 1 (emphasis added). See
Appeal Br. 27–36; Reply Br. 5–8. In particular, Appellant argues Diep’s
teachings are “inconsistent with both the customary meaning of ‘as a
function of’ in the art and is inconsistent with the use of the phrase in
[Appellant’s] disclosure in contravention of MPEP § 2111.” Appeal Br. 32.
Appellant contends the claimed “as a function of” requires a specific
relationship between the elements and
a person of ordinary skill in the art would have understood that
one cannot necessarily say that “y as a function of x” is
equivalent to “x as a function of y,” and accordingly, that
“consumption of the performance metric as a function of
percent execution time,” as recited in independent claim 1 . . . is
equivalent to “percent execution time as a function of
consumption of the performance metric.”

5 To the extent Appellant advances new arguments in the Reply Brief
without showing good cause, Appellant has waived such arguments. See
37 C.F.R. § 41.41(b)(2).
Appeal 2019-006934
Application 14/953,998

5
Appeal Br. 33. Appellant argues Diep teaches “percent execution time” as a
function of “throughput”—not “throughput” as a function of “percent
execution time.” See Appeal Br. 35–36; Reply Br. 7–8.
Appellant has not persuaded us of error. It is well established that
during examination, claims are given their broadest reasonable interpretation
consistent with the specification, but without importing limitations from the
specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004) (citations omitted); SuperGuide Corp. v. DirecTV Enters., Inc.,
358 F.3d 870, 875 (Fed. Cir. 2004).
In this case, Appellant’s argument that “a person of ordinary skill in
the art would readily understand that ‘as a function of’ in Appellant’s
disclosure is explicitly used in the mathematical sense demonstrated by
Expressions 1 and 2 and the way in which those expressions are used to
generate Appellant’s Figures 4 and 5A-5C” (Reply Br. 7–8) is unpersuasive.
The Specification’s Expressions 1 and 2 are exemplary and non-limiting, and
Appellant has not demonstrated the broadest reasonable interpretation of
claim 1 requires importing such exemplary embodiments into the disputed
limitation. Further, contrary to Appellant’s argument (Appeal Br. 33), claim
1 does not require “a consumption of the performance metric” to be the “y”
variable and “percent execution time” to be the “x” variable.
Appellant also cites a definition of “a function of something” from an
undated Macmillan Dictionary defining (Reply Br. 6), but fails to show why
that definition of “a function of something” from an undated Macmillan
Dictionary defines the claimed “as function of.” See Phillips v. AWH Corp.,
415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc) (It is well established that
the meaning of a claim term “is the meaning that the term would have to a
Appeal 2019-006934
Application 14/953,998

6
person of ordinary skill in the art in question at the time of the invention, i.e.,
as of the effective filing date of the patent application.”) (citations omitted)
(emphasis added).6 As a result, Appellant has not shown the argued
definition constitutes the broadest reasonable interpretation of the term “as a
function of.”
Further, a relevant dictionary defines “function” as “a mathematical
relationship that assigns to each element of a set one and only one element
of the same or another set.” The Merriam-Webster Dictionary 309 (1997).
That definition is also consistent with the Specification’s description of the
term. See, e.g., Spec. ¶¶ 35, 45, 49–50 (discussing functions).
Turning to the cited reference, Diep describes “[a] data point in each
graph [of Figure 8] . . . is plotted based on its transaction throughput . . . and
the corresponding user or kernel execution time . . . , measured in terms of
percentage of total execution time.” Diep 6, § V., ¶ 2. Therefore, Diep’s
data points, which are plotted based on each data point’s transaction
throughput and corresponding execution time, demonstrate a mathematical
relationship that meets the definition of “function” discussed above. As a
result, the Examiner correctly cites Diep’s data points to teach transaction
throughput “as a function of” execution time. See Ans. 4–5. Because
Diep’s “transaction throughput” and “execution time” (“measured in terms
of percentage of total execution time” (Diep 6, § V., ¶ 2)) teach the claimed
“consumption of the performance metric” and “percent execution time,”

6 That dictionary also offers an alternative definition: “the result of
a change in something,” which is similar to the Examiner’s interpretation of
the claim term (Ans. 5).

Appeal 2019-006934
Application 14/953,998

7
respectively, Diep teaches “a consumption of the performance metric as a
function of percent execution time,” as required by claim 1. See Ans. 4–5.

II

Appellant contends “reorienting the [sic] Diep’s figures in the manner
suggested by the Office represents impermissible hindsight reasoning.” See
Appeal Br. 36–41; Reply Br. 8–9. In particular, Appellant argues the
Examiner
has yet to provide any rationale as to why a person of ordinary
skill in the art would have modified Diep . . . in the manner
suggested by the Office (i.e., rotating the axes of Diep Figure 8
in the manner of Office Action Figures 1 and 2) or what
knowledge would have allowed such a person to do so at the
time the invention was made.

Appeal Br. 37–38; Reply Br. 9.
Appellant’s arguments are unpersuasive. Our reviewing courts have
not established a bright-line test for hindsight. The U.S. Supreme Court
guides that “[a] factfinder should be aware, of course, of the distortion
caused by hindsight bias and must be cautious of arguments reliant upon ex
post reasoning.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007)
(citing Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 36
(1966)). “Rigid preventative rules that deny factfinders recourse to common
sense, however, are neither necessary under our case law nor consistent with
it.” KSR, 550 U.S. at 421.
As discussed above, Diep’s data points teach the italicized limitation.
As a result, there is no need to rotate the axes of Diep, as Appellant argues
Appeal 2019-006934
Application 14/953,998

8
(Appeal Br. 37–38; Reply Br. 9). Therefore, on this record, Appellant has
not persuaded us the Examiner engaged in impermissible hindsight.
Because Appellant has not persuaded us the Examiner erred, we
sustain the Examiner’s rejection of independent claim 1, and independent
claims 9, 13, 16, and 21 for similar reasons.7
We also sustain the Examiner’s rejections of corresponding dependent
claims 2–8, 10–12, 14, 15, 17–20, and 22–25, as Appellant does not advance
separate substantive arguments about those claims. See 37 C.F.R.
§ 41.37(c)(1)(iv).

CONCLUSION
We affirm the Examiner’s decision rejecting claims 1–25 under
35 U.S.C. § 103.
In summary:

Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–5, 9, 12,
13, 16–18,
21–23
103 Sura, Diep, Goebel 1–5, 9, 12,
13, 16–18,
21–23

6, 7, 19, 24 103 Sura, Diep,
Goebel,
Leykekhman
6, 7, 19, 24
8, 20, 25 103 Sura, Diep,
Goebel,
Leykekhman,
Lowe
8, 20, 25
10, 11, 15 103 Sura, Diep,
Goebel, McGee
10, 11, 15

7 If prosecution reopens, we leave it to the Examiner to evaluate whether
claims 16–20 are patent eligible under 35 U.S.C. § 101.
Appeal 2019-006934
Application 14/953,998

9
14 103 Sura, Diep,
Goebel, Muscarella
14
Overall
Outcome
1–25

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See
37 C.F.R. § 41.50(f).

AFFIRMED