International Business Machines Corporation

Patent Trials and Appeals Board

Dec 10, 2021

2020005467 (P.T.A.B. Dec. 10, 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.
14/487,957 09/16/2014 Bin Cao ROC920140020US2 6261
106324 7590 12/10/2021
IBM Corporation - Patent Center
1701 North Street
B256/3
Endicott, NY 13760
EXAMINER
RAZA, MUHAMMAD A
ART UNIT PAPER NUMBER
2449
NOTIFICATION DATE DELIVERY MODE
12/10/2021 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):
fdciplaw@us.ibm.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

Ex parte BIN CAO, BRIAN R. MURAS, and JINGDONG SUN

Appeal 2020-005467
Application 14/487,957
Technology Center 2400

Before ROBERT E. NAPPI, ERIC S. FRAHM, and
MICHAEL T. CYGAN, Administrative Patent Judges.

CYGAN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–13. Appeal Br. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
International Business Machines Corporation. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The claimed subject matter generally relates to enhancing
performance of a streaming application using helper operators. Spec. ¶ 2.
Streaming applications typically include multiple operators coupled together
in a flow graph to process streaming data in near real-time. Id. ¶ 4. An
operator typically takes in streaming data in the form of data tuples. Id.
Independent claim 1 is illustrative, with a below-discussed limitation
emphasized in italics:
1. A computer-implemented method executed by at least one
processor for managing a streaming application, the method
comprising:
creating a streaming application that comprises a flow
graph that includes a plurality of operators that process a
plurality of data tuples, wherein the plurality of operators
comprises a first operator having first logic for processing data
tuples and a second operator having second logic for processing
data tuples, wherein the first logic for processing data tuples is
different than the second logic for processing data tuples;
executing the streaming application;
while executing the streaming application, creating a
helper operator that has an input and an output that initially
are disconnected, wherein the helper operator implements the
first logic for processing data tuples and the second logic for
processing data tuples;
monitoring performance of at least one of the plurality of
operators in the streaming application as the streaming
application executes; and
when one of the at least one operators in the streaming
application becomes a bottleneck, adjusting the helper operator
by connecting the input and the output of the helper operator to
the flow graph to alleviate the bottleneck in the one operator.
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Appeal Br. 16 (Claims App.). Independent claims 10 and 12 recite methods
having substantially similar limitations to those in claim 1. Id. at 18–19.
Dependent claims 2–9, 11 and 13 each incorporate the limitations of their
respective independent claims. Id. at 16–19.
REFERENCES
Name Reference Date
Andrade et al.
(“Andrade”)
US 2011/0083046 A1 Apr. 7, 2011
Doherty et al.
(“Doherty”)
US 8,189,479 B1 May 29, 2012
Fernandez et al.
(“Fernandez”)
“Integrating Scale Out and
Fault Tolerance in Stream
Processing using Operator
State Management”
June, 2013
REJECTIONS
Claims 1–5, 7–9, and 11 are rejected under 35 U.S.C. § 103 as being
obvious over the combination of Fernandez and Andrade.
Claims 6, 10, 12, and 13 are rejected under 35 U.S.C. § 103 as being
obvious over the combination of Fernandez, Andrade, and Doherty.
OPINION
I. Claims 1–5, 7–9, and 11
Appellant argues that the Examiner’s obviousness rejections are in
error because the combination of applied prior art fails to teach a single
processing element that includes logic from two different processing
elements. Appeal Br. 6–7. In response to the Examiner’s statement that
Appellant has not argued limitations that are in the claim (Ans. 4–5),
Appellant clarifies that the missing teaching is a (single) helper operator that
implements first and second logic for processing data tuples, wherein the
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first logic differs from the second logic. Reply Br. 3. The corresponding
claim limitation thus appears to be “a helper operator that has an input and
an output that initially are disconnected, wherein the helper operator
implements the first logic for processing data tuples and the second logic for
processing data tuples.”
Examiner’s Findings
The Examiner finds Fernandez to teach a helper operator that has an
initially disconnected input and output, and to teach a first operator having
first logic for processing data tuples and a second logic for processing data
tuples. Final Act. 2–4; Ans. 6–7 (pointing to Fernandez’s forwarder
operator and stateful toll calculator operator). The Examiner finds Andrade
to teach a helper operator that implements first and second logic for
processing data tuples. Final Act. 3–4. The Examiner cites to Andrade’s
teaching of a processing operator that hosts one or more stream operators.
Id. at 3 (citing Andrade ¶ 18). The Examiner further points to flow graphs in
Andrade that have two operators. Id. (citing Andrade Figs. 2A, 2B, 4A, 5A,
5B, and 7). The Examiner finds that Andrade teaches a replica that includes
logic for both of the operators; specifically, that Andrade’s second replica
2022 is a helper operator that includes processing elements 2041 through
204m. Id. at 3–4; Ans. 11–12 (citing Andrade ¶¶ 29–30; Fig. 2B). The
Examiner points to two processing elements, 2043 and 2044, which are
included within Andrade’s replica 2022, as teaching the claimed first and
second logic.
The Examiner finds that modifying Fernandez (having a helper
operator) to include Andrade’s implementation of first and second logic in a
helper operator would provide the advantages of fresh, low latency results
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using a fault tolerant technique. Final Act. 3–4. The Examiner further finds
that it would have been obvious for either Fernandez or Andrade alone to
make obvious the claimed helper operator having first and second logic,
since each individually teaches a helper operator having two logic elements.
Ans. 10, 12.
Appellant’s Contentions
Appellant argues that Andrade has no teaching of a single processing
element that includes logic for processing data tuples from two other
processing elements. Appellant points to Andrade’s processing element
2041 having only logic 2041 and processing element 2042 having only logic
2042. Appeal Br. 7. Appellant argues that, to the extent that the Examiner’s
Answer maps replica 2022 to the helper operator, and elements 2043 and
2044 to the first and second logic, such mapping is inconsistent with the
mapping of Fernandez, which instead maps first and second logic to
Fernandez’s Forwarder and Toll Calculator operators. Reply Br. 7.
Appellant further argues that the mapping in the Examiner’s Answer is
newly presented, and should not be considered by the Board as untimely. Id.
Appellant further argues that, in a related appeal, the Board “requires
multiple processing elements in Andrade to read on the ‘at least one
operator’ recited in the claim in the parent case.” Appeal Br. 7. Appellant
states that the Board determined that multiple processing elements each
having its own logic reads on “at least one helper operator that includes logic
for multiple operators in the flow graph.” Id. Appellant quoted the Board’s
description of Andrade as “for each high availability group of operators, the
application creates a replica of an identical number of processing elements to
contain the logic of all the operators within the high availability group.” Id.
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Analysis
The claim limitation at issue is “a helper operator that has an input
and an output that initially are disconnected, wherein the helper operator
implements the first logic for processing data tuples and the second logic for
processing data tuples.” Appellant’s main argument is that the Andrade
reference, applied to teach these properties of a helper operator, does not
teach or suggest a single helper operator having both a first and a (different)
second logic. Appeal Br. 6. Appellant argues that Andrade teaches only a
single logic within each helper operator. Id. In so arguing, Appellant maps
Andrade’s processing element 204n to the claimed helper operator. Id.
Because each processing element 204n has only a single logic element 204n,
Appellant argues that Andrade does not teach a helper operator having two
different logic elements. Id.
However, Appellant does not provide any specific explanation of a
“helper operator.” Appellant argues that “helper operator” is limited only by
the pertinent limitations of claim 1. Reply Br. 7. Because each processing
element 204n has a logic associated with it, Andrade’s second replica 2022
includes at least two logic elements, thus teaching the “helper operator” as
limited by claim 1. Therefore, Appellant has shown no reason why
Andrade’s second replica 2022, which includes processing elements 2041
through 204m, does not teach the claimed helper operator, as found by the
Examiner.
Appellant further argues that the Board construed “helper operator”
otherwise in the appeal on the parent case. Appeal Br. 7 (citing the
December 25, 2018, Board decision in Application 14/308,993). In that
decision we stated,
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Andrade’s teaching or suggestion of a “replica” of a high
availability group of operators, containing the logic of all of
those operators therein, therefore, teaches or suggests the
claimed “helper operator that includes logic for multiple
operators in the flow graph.”
‘993 Board Decision, 8. However, this statement supports, not conflicts,
with the interpretation of a helper operator provided by the Examiner, which
we find supported by the record.
Nor are we persuaded by Appellant’s argument that the Examiner’s
reasoning is inconsistent because both Fernandez and Andrade are relied
upon for teachings of first and second logic. Reply Br. 7. Fernandez is
relied upon for the teachings of the first and second logic in a flow graph
(Ans. 6–7), whereas Andrade is relied upon for teachings of first and second
logic in a helper operator (Ans. 10–11). There is no inconsistency in
applying different teachings for different claim elements. Furthermore, the
test for obviousness is “not whether the features of a secondary reference
may be bodily incorporated into the structure of the primary reference,” but
instead “what the combined teachings of the references would have
suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413,
425 (CCPA 1981). Appellant has not persuaded us of any inconsistency.
Finally, we are unpersuaded by Appellant’s argument that we should
disregard any argument allegedly newly presented by the Examiner in the
Answer. Our rules explicitly provide a single avenue for seeking review of
an Examiner’s failure to designate new grounds of rejection in an
Examiner’s Answer, through “a petition to the Director under § 1.181 filed
within two months from the entry of the examiner’s answer and before the
filing of any reply brief.” 37 C.F.R. § 41.40(a). Because Appellant has not
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timely filed such a petition, Appellant has waived any arguments that a
rejection in the Examiner’s Answer is a new ground of rejection. Id.
Accordingly, we sustain the Examiner’s rejection of claim 1, and
claims 2–5, 7–9, and 11 argued under the same reasoning.
II. Claims 6, 10, 12, and 13
Claim 6, depending ultimately from claim 1, recites the additional
limitation of:
wherein the one operator detects when the one operator
becomes a bottleneck and sends a notification to the streams
manager, wherein the streams manager detects when the one
operator becomes a bottleneck by receiving the notification
from the one operator.
Appellant argues that the combination of Fernandez, Andrade, and Doherty
does not teach or suggest the claimed invention because (1) the Examiner
lacks proper motivation to combine Doherty with Fernandez and Andrade
(Appeal Br. 11–12), and (2) Doherty does not teach sending a notification to
a streams manager (Appeal Br. 12–13). 2
1. Motivation to combine
The Examiner finds Fernandez to teach alleviating a bottleneck in an
operator, but not that the operator detects that it becomes a bottleneck, or
that the operator sends a notification to the streams manager. Final Act. 3
(citing Fernandez 726, 730–735), 6. The Examiner notes that Fernandez
uses a bottleneck detector that identifies the bottleneck operators based on
system statistics. Id. at 3 (citing Fernandez 726, 730–735).

2 Appellant clarifies that no argument based upon analogous art was made.
Reply Br. 12.
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The Examiner relies upon Doherty for its teaching of a mesh network
in which a node indicates to other nodes whether there is congestion at that
node, such as by checking the number of packets awaiting transmission in its
output queue. Id. at 6 (citing Doherty 12:34–47, 42–51). The Examiner
combines that teaching of Doherty with the operator bottleneck detection
system of Fernandez to teach the limitations of claim 6. The Examiner
points to Andrade (also relied upon in the combination) for teaching that
stream processing applications should continue to generate semantically
correct results even in the presence of failure. Id. at 7 (citing Andrade ¶ 3).
The Examiner further explains,
One of ordinary skill in the art, before the effective filing date
of the claimed invention, would also have been motivated to
modify Fernandez and Andrade with Doherty to provide a fault-
tolerance technique for streaming processing application that
would not lead to waste of resources and would enable the
application to recover from a failure and to be highly available
and enable application to continue processing streams of data
(for both consumption and production) in the event of a failure
and without interruption, as taught by Andrade in paragraphs
[0002], [0005], and [0015].
Ans. 32.
Appellant takes exception to the use of a motivation from Andrade to
support combining a teaching of Doherty with Fernandez. Appeal Br. 7.
Appellant argues that the Examiner has not sufficiently explained “why one
of ordinary skill in the art would be motivated to apply the teachings of
Doherty relating to hardware nodes in a mesh network to the processing
elements in a streaming application in Doherty.” Appeal Br. 12; Reply Br.
12–13.
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We are not persuaded by Appellant’s argument. The Supreme Court
has explained that the obvious analysis “need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR Int’l v. Teleflex Inc., 550 U.S.
398, 418 (2007). Andrade demonstrates that it was considered desirable in
the art to avoid incorrect operator results due to failure in a stream
processing operation; Doherty provides a procedure for avoiding congestion
at a processing node using a self-identification and reporting technique.
Assuming Doherty is analogous art (which the Examiner finds (Answer 26–
27), and the Appellant specifically denies contesting (Reply Brief 12)), we
are not persuaded that one having ordinary skill in the art would have not
looked to the solution provided by Doherty to address the bottleneck
problem mentioned by both Andrade and Fernandez. The fact that Andrade,
rather than Doherty, identifies the problem in the art that is solved by the
combination of references is permissible under KSR, which states, “any need
or problem known in the field of endeavor at the time of invention and
addressed by the patent can provide a reason for combining the elements in
the manner claimed.” KSR, 550 U.S. at 420. Accordingly, we are not
persuaded of error in the Examiner’s stated reason to combine the
references.
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2. Sending a notification to a streams manager
Appellant further argues that Doherty’s node sends its congestion
notification to other nodes, not to a “streams manager” as claimed. Appeal
Br. 12–13. Appellant argues that Fernandez does not teach sending a
notification to a streams manager, because Fernandez instead teaches an SPS
(“stream processing system”) that monitors queries for bottleneck operators.
Id. at 13. Appellant argues that, at best, the combination of references would
result in an operator reporting congestion to a neighbor operator, not to the
streams manager. Reply Br. 14.
We are not persuaded that the combined teachings of the references
fail to teach or suggest an operator sending a notification to a streams
manager. Although Appellant argues that the combination would result in
an operator reporting congestion to a neighbor operator, Fernandez teaches
that its SPS “identifies individual operator bottlenecks.” Thus, we are not
persuaded that the combined teachings should be limited solely to providing
congestion reports to a neighbor operator. Further, Appellant admits that
“[a] programmer in the art of streaming applications will readily know how
to write code that will make an operator detect when it becomes a bottleneck
and send a notification to the streams manager.” Reply Br. 15. Based on the
entirety of the record, we are not persuaded that one having ordinary skill in
the art at the time the invention was made would not have made the
combination of references in the manner explained by the Examiner to make
obvious the invention of claim 6. Accordingly, we sustain the rejection of
claim 6, and claims 10, 12, and 13, which are rejected under the same
grounds and argued on the same reasoning.

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CONCLUSION
For the above-described reasons, we affirm the Examiner’s
obviousness rejections of claims 1–13 over the applied art, as summarized
below.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5, 7–9,
11
103 Fernandez, Andrade 1–5, 7–9,
11

6, 10, 12,
13
103 Fernandez,
Andrade, Doherty
6, 10, 12,
13

Overall
Outcome
1–13

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).

AFFIRMED