International Business Machines Corporation

Patent Trials and Appeals Board

Feb 24, 2022

2021000431 (P.T.A.B. Feb. 24, 2022)

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. 15/354,091 11/17/2016 Nicolas M. Clayton CN920160072US1 6044 78650 7590 02/24/2022 Nelson and Nelson 775 High Ridge Drive Alpine, UT 84004 EXAMINER AYERS, MICHAEL W ART UNIT PAPER NUMBER 2195 NOTIFICATION DATE DELIVERY MODE 02/24/2022 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): dan@nnpatentlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NICOLAS M. CLAYTON, SHAN FAN, YONGJIE GONG, YANG LIU, and XUE QIANG ZHOU Appeal 2021-000431 Application 15/354,091 Technology Center 2100 Before MARC S. HOFF, JUSTIN BUSCH, and JOYCE CRAIG, Administrative Patent Judges. CRAIG, 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 rejecting claims 1-20, which are all of the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2019). Appellant identifies International Business Machines Corporation as the real party in interest. Appeal Br. 2. Appeal 2021-000431 Application 15/354,091 2 CLAIMED SUBJECT MATTER According to Appellant, the claims relate to workload balancing in a system. Spec. ¶ 3. Claim 1 is reproduced below and illustrates the claimed subject matter, with the disputed limitation shown in italics: 1. A device comprising: a processing unit; a memory coupled to the processing unit and storing instructions thereon, the instructions, when executed by the processing unit, performing acts including: obtaining a configuration of a system, the configuration including a connection relationship between components in the system, the system comprising a given component that receives a workload from an upstream component; determining a workload limit of the given component and a workload limit of the upstream component, the workload limit indicating a maximum workload of each respective component by itself; determining a workload threshold of the given component and a workload threshold of the upstream component, the workload threshold indicating a maximum workload of each respective component when considering workload limits of components that receive workloads from the respective component; determining a utilization rate of the given component, the utilization rate indicating what percentage of a capacity of the given component is being utilized, wherein the utilization rate is a function of the following: a current workload of the given component, the workload threshold of the given component, and the workload threshold of the upstream component; and using the utilization rate to balance workloads among the components in the system. Appeal Br. 8 (Claims App.). Appeal 2021-000431 Application 15/354,091 3 REFERENCES The prior art that the Examiner relied on as evidence is: Name Reference Date Bamba et al. (“Bamba”) US 2008/0288739 A1 Nov. 20, 2008 Shigemura et al. (“Shigemura”) US 2011/0283123 Al Nov. 17, 2011 Gulati et al. (“Gulati”) US 2013/0326064 A1 Dec. 5, 2013 Song et al. (“Song”) US 9,223,630 B2 Dec. 29, 2015 Katevenis US 2016/0087899 A1 Mar. 24, 2016 REJECTIONS Claims 1-3, 6-8, 11-13, 16-18, and 20 stand rejected under 35 U.S.C. § 103 as unpatentable over Bamba and Song. Final Act. 2-8. Claims 4, 5, 14, and 15 stand rejected under 35 U.S.C. § 103 as unpatentable over Bamba, Song, and Gulati. Final Act. 8-10. Claim 9 stands rejected under 35 U.S.C. § 103 as unpatentable over Bamba, Song, and Shigemura. Final Act. 11-12. Claims 10 and 19 stand rejected under 35 U.S.C. § 103 as unpatentable over Bamba, Song, and Katevenis. Final Act. 12-13. ANALYSIS Appellant argues that the Examiner’s rejection of independent claims 1, 11, and 20 is in error. Appeal Br. 4-6. Appellant argues rejected claims 1-20 as a group. See Appeal Br. 4-6. We select claim 1 as representative of the group, with claims 2-20 standing or falling with claim 1. 37 C.F.R. § 41.37(c)(1)(iv). Appellant argues that Bamba and Song, alone or in combination, fail to teach or suggest the limitation determining a utilization rate of the given component, the utilization rate indicating what percentage of a capacity of the given component is being utilized, wherein the utilization rate is Appeal 2021-000431 Application 15/354,091 4 a function of the following: a current workload of the given component, the workload threshold of the given component, and the workload threshold of the upstream component, as recited in claim 1. Id. at 5. In particular, Appellant argues that “[t]here is no evidence that Song’s “percentage or load” reflects “what percentage of a capacity of [a] given component is being utilized” as required by Appellant’s independent claims.” Id. at 6. Appellant further argues that “[t]here is also no evidence that Song’s “percentage or load” is a “function of . . . a current workload of [a] given component, the workload threshold of the given component, and the workload threshold of [an] upstream component,” as required by Appellant’s independent claims. Id. We agree with the Examiner that Song’s “percentage or load” reflects “what percentage of a capacity of the given component is being utilized,” as claim 1 requires. See Ans. 4-5. The Examiner found that Song teaches “determining that the receiving server has reached its capacity and can no longer handle further requests. In other embodiments, step 420 includes determining that the receiving server has reached some predetermined load or percentage or load.” Ans. 4 (citing Song Fig. 4; col. 8:25-29). The Examiner found that the phrase “percentage or load” in Song should be read as “percentage o[f] load,” which refers to a percentage of the load capacity that the receiving server is capable of performing. Id. at 5. Appellant has not persuasively rebutted the Examiner’s findings. See Reply Br. 5. Appellant does not argue that the phrase “percentage or load” in Song cannot be read as “percentage o[f] load,” as the Examiner found. See id. Moreover, Appellant’s argument that “a ‘load’ or ‘percentage [of] load’ described by Song is not synonymous with the ‘utilization rate’ recited in Appellant’s independent claim misstates the legal standard for obviousness. Appeal 2021-000431 Application 15/354,091 5 See id. The test for obviousness is not whether the claimed invention is expressly suggested in any one or all of the references, but whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). We disagree with the Examiner, however, that the “determining that the receiving server has reached some . . . predetermined percentage o[f] load” taught in Song is a function of a current workload of the given component, the workload threshold of the given component, and the workload threshold of the upstream component, as claim 1 requires. See Ans. 5. In particular, the Examiner has not identified with sufficient detail where Song or Bamba teaches or suggests that determining that the receiving server in Song has reached its capacity is a function of the workload threshold of an upstream component. The Examiner found Song teaches that “the load received at the receiving server comes from a parent, upstream server that was itself determined to exceed its own predetermined percentage of load” and, “[t]herefore, ‘determining that the receiving server has reached some . . . predetermined percentage of load’ considers, and is therefore also a function of 3) the load, or workload ‘threshold’ of the parent, or ‘upstream’ server, or ‘component’ being exceeded.” Ans. 5 (citing Song Fig. 4, col. 7:34-35). Appellant has persuaded us that the portions of Song cited by the Examiner do not teach or suggest that Song’s determination that a “receiving server has reached some predetermined load or percentage o[f work]load” is a function of a workload threshold of an upstream component. Reply Br. 5- 6. We agree with Appellant that, without more, Song’s teaching that the load received at the receiving server comes from a parent, upstream server that Appeal 2021-000431 Application 15/354,091 6 exceeded its own predetermined percentage of load is insufficient to teach or suggest that Song’s determination that a “receiving server has reached some predetermined load or percentage o[f work]load” is somehow a “function of . . . the workload threshold of [an] upstream component,” as required by claim 1. Because we agree with at least one of the dispositive arguments for claim 1 advanced by Appellant, we need not reach the merits of Appellant’s other contentions. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984) (finding an administrative agency is at liberty to reach a decision based on “a single dispositive issue”). Accordingly, on the record before us, we reverse the Examiner’s obviousness rejection of independent claim 1. We also reverse the Examiner’s obviousness rejection of independent claims 11 and 20, which are commensurate in scope with claim 1. As the Examiner does not rely on any other prior art references as teaching or suggesting the disputed limitation, we also reverse the Examiner’s obviousness rejection of dependent claims 2-10 and 12-19, argued as a group with claim 1. See Appeal Br. 6. CONCLUSION We reverse the Examiner’s decision rejecting claims 1-20. Appeal 2021-000431 Application 15/354,091 7 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 6-8, 11-13, 16- 18, 20 103 Bamba, Song 1-3, 6-8, 11-13, 16- 18, 20 4, 5, 14, 15 103 Bamba, Song, Gulati 4, 5, 14, 15 9 103 Bamba, Song, Shigemura 9 10, 19 103 Bamba, Song, Katevenis 10, 19 Overall Outcome 1-20 REVERSED