VMware, Inc.

Patent Trials and Appeals Board

Jun 16, 2020

2019002049 (P.T.A.B. Jun. 16, 2020)

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.
14/319,057 06/30/2014 Nicholas Kushmerick B739.CIP2 1028
152606 7590 06/16/2020
VMWare - OPW
P.O. Box 4277
Seattle, WA 98194
EXAMINER
DABIPI, DIXON F
ART UNIT PAPER NUMBER
2443
MAIL DATE DELIVERY MODE
06/16/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NICHOLAS KUSHMERICK and JUNYUAN LIN

Appeal 2019-002049
Application 14/319,057
Technology Center 2400

Before JEAN R. HOMERE, MICHAEL M. BARRY, and
PHILLIP A. BENNETT, Administrative Patent Judges.
HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

I. STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1–23, which constitute all of the claims
pending in this appeal.2 Claims App. We have jurisdiction under
35 U.S.C. § 6(b). We affirm.

1 We refer to the Specification filed June 30, 2014 (“Spec.”); the Final
Office Action, mailed Nov. 16, 2017 (“Final Act.”); the Appeal Brief, filed
Apr. 24, 2018 (“Appeal Br.”); and the Examiner’s Answer, mailed Aug. 3,
2018 (“Ans.”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies VMWARE, Inc. as the real party-
in-interest. Appeal Br. 1.
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II. CLAIMED SUBJECT MATTER
According to Appellant, the claimed subject matter is directed to an
event-message clustering method and system for classifying and storing
incoming event messages, according to their types, in corresponding event
logs. Spec. ¶ 2. In particular, upon receiving an event message, processor
(102–105) assigns the event message to a corresponding cluster, extracts
data values from the event message to compute a significance value
(priority) for generating an event record for storing the event message in the
selected cluster in physical storage device (128). Id. ¶ 5.
Figure 1, discussed and reproduced below, is useful for
understanding the claimed invention:

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Figure 1 illustrates event-clustering system including processors (102–105)
coupled to memory (108) storing computer instructions to process received
event messages, classify and store them in mass storage device (128). Id. ¶
43.

Claims 1, 12, and 23 are independent. Claim 1, reproduced below
with disputed limitations emphasized in italics, is illustrative of the claimed
subject matter:
1. An event-message clustering system comprising:
one or more processors;
one or more memories; and
computer instructions, stored in one or more of the one or more
memories that, when executed by one or more of the one or more
processors, control the event-message clustering system to
receive event messages, and
process each of the received event messages by
determining a cluster to which to assign the event
message,
extracting data values from the event message,
computing a significance value for the event message,
generating an event record corresponding to the event
message that includes the extracted data values, and
storing the event record within, or associated with, the selected
cluster in a physical data-storage device.

Appeal Br. 30 (Claims Appendix).

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III. REFERENCES
The Examiner relies upon the following references.3
Name Reference Date
Seshadri US 2004/0002958 A1 Jan. 1, 2004
Cohen4 US 2011/0185234 A1 July 28, 2011
Umanesan US 2014/0334739 A1 Nov. 13, 2014

IV. REJECTIONS
The Examiner rejects claims 1–23 as follows:
1. Claims 1, 12, and 23 stand provisionally rejected under nonstatutory
obviousness-type double patenting as being unpatentable over claims
1, 13, and 22 co-pending application No. 14/318,968 in view of
Cohen and Umanesan. Final Act. 22–25.
2. Claims 1–10, 12–21, and 23 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Cohen and Umanesan.
Final Act. 25–40.
3. Claims 11 and 22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Cohen, Umanesan, and
Seshadri. Final Act. 40–43.

3 All reference citations are to the first named inventor only.
4 Cohen (US 2011/0185234 A1; July 28, 2011) has been issued as US Patent
No. 8,209,567.
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V. ANALYSIS
We consider Appellant’s arguments seriatim, as they are presented in
the Appeal Brief, pages 9–29.5 We are unpersuaded by Appellant’s
contentions. Except as otherwise indicated herein below, we adopt as our
own the findings and reasons set forth in the Final Action, and the
Examiner’s Answer in response to Appellant’s Appeal Brief. Final Act. 2–
44; Ans. 3–48. However, we highlight and address specific arguments and
findings for emphasis as follows.

1. Double Patenting Rejection
The Examiner provisionally rejects claims 1, 12, and 23 under
nonstatutory obviousness-type double patenting as being unpatentable over
claims 1, 13, and 22 co-pending application No. 14/318,968. Final Act. 22–
25. In response, Appellant argues that the Examiner’s double patenting
rejection is in error because Cohen has been issued as US Patent No. 8,
209,567, which is assigned to Hewlett Packard Development Company, and
Umanesan is owned by Xyratex Technology, which are not commonly
owned or assigned with the present application. Appeal Br. 9–10.
Appellant’s arguments are not persuasive. Although Cohen and
Umanesan are not commonly assigned with Appellant’s application, we
agree with the Examiner that the provisional double patenting is primarily
based on co-pending application No. 14/318,968, which is commonly owned

5 We have considered in this Decision only those arguments Appellant
actually raised in the Briefs. Any other arguments Appellant could have
made but chose not to make in the Briefs are deemed to be waived. See
37 C.F.R. § 41.37(c)(1)(iv) (2017).
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and assigned with Appellant’s application to VMWARE, Inc. Ans. 24.
Because Appellant’s arguments failed to address the Examiner’s findings
regarding the cited commonly owned and assigned co-pending applications,
such arguments are deemed waived. Accordingly, we sustain the
Examiner’s provisional obviousness double patenting rejection of claims 1,
12, and 23.

2. Obviousness Rejections
Appellant argues the Examiner erred in finding that the combination
of Cohen and Umanesan teaches or suggests processing event messages that
are generated, and received, as recited in independent claim 1. Appeal
Br. 15. In particular, Appellant argues Cohen instead processes event logs
that already contain event messages. Id. at 15, 18, 19 (citing Cohen ¶¶ 48,
49). According to Appellant, although Cohen is directed to an event-
message clustering system that classifies events into event clusters, and
stores event messages into event logs, Cohen “does not employ parsers to
identify and extract parameters values and it does not carry out clustering on
non-parameter tokens within message events.” Id. at 14–15. Appellant
submits that Cohen merely uses a simple clustering algorithm to cluster
event messages based on the ratio of identical words in the message, but it is
devoid of any teaching pertaining to significance values for prioritizing
clustered event messages. Id. at 15. Appellant particularly argues that
Cohen’s disclosure of using the similarity function to calculate a distance
metric does not teach the significance value because the former computes
similarity between two event messages, whereas the latter calculates the
priority of each event message. Id. at 22–24. Appellant also argues that
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because Umanesan similarly discloses calculating a distance between
characters of different event messages, it does not cure the noted
deficiencies of Cohen. Id. at 15, 24, 25. Further, Appellant argues that
Cohen discloses an offline processing system for processing event messages
contained in event logs, as opposed to an online system for processing the
event messages as they are received. Id. at 17 (citing Cohen ¶¶ 13, 41, 52,
64). Additionally, Appellant argues that because Cohen’s atom recognizer
module parses log files, not event messages, and identifies sets of messages
rather than extracting data values therefrom, it does not teach extracting data
values from event messages. Id. at 20–21(citing Cohen ¶¶ 11, 41, 53, 72).
Finally, Appellant argues that because Cohen’s disclosure of a cluster
assignment record relates to simply to a list of assignments of event
messages to clusters, it does not teach generating and storing an event
record, as recited in claim 1. Id. at 27.
Appellant’s arguments are not persuasive of reversible Examiner
error. As an initial matter, we note that claim 1 does not recite processing
event messages online, nor does it recite clustering non-parameter tokens
within message events. Accordingly, Appellant’s arguments regarding these
limitations are not commensurate with the scope of the claim. We further
note that although Appellant strenuously argues that Cohen’s disclosure of
calculating distance values between event messages does not teach a
significance value, as recited in the claim, Appellant has failed to provide a
definition for “significance value” beside indicating that it pertains to
determining priority of the event message. We agree with the Examiner that
under the broadest reasonable interpretation in light of the Specification,
“significance value” can be reasonably construed as a value pertaining to the
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similarity or distance metric between different event messages. Final
Act. 2–3 (citing Spec. ¶ 104, Fig. 31). We, therefore, agree with the
Examiner that the disclosure of calculating the distance or similarity value
between event messages as taught by the combination of Cohen and
Umanesan teaches the claimed step of computing the significance value.
Ans. 45–47. Further, as correctly noted by the Examiner, Cohen discloses
that upon receiving an event message, the network management system
(NMS) stores the event message and extracts characters therefrom to
calculate a similarity value thereof with another received message so as to
classify messages with similar values in the same cluster. Cohen ¶¶ 28, 38–
41. We thus agree with the Examiner that Cohen’s disclosure teaches
extracting values from incoming event messages to subsequently classify
them into corresponding clusters. Ans. 31, 32, 36, 40. Further, Cohen
discloses creating a record for each assignment of an incoming event
message to a cluster, and storing the created record in the storage device.
Cohen ¶¶ 48–51. Accordingly, we agree with the Examiner that Cohen’s
disclosure of storing assigned event messages in the processed log teaches
generating a record to store each incoming event message. Final Act. 18, 19,
21 (citing Cohen ¶¶ 76–90).
Additionally, we agree with the Examiner that it would have been
obvious to one of ordinary skill in the art to combine the cited teachings of
Cohen and Umanesan, because the proposed combination would have
predictably resulted in an event-message clustering system for storing in a
permanent device incoming event messages assigned to particular clusters
according to similarity values extracted therefrom. Final Act. 24–25. We
find the Examiner’s proposed combination of the cited teachings of Cohen
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and Umanesan is no more than a simple arrangement of old elements with
each performing the same function it had been known to perform, yielding
no more than one would expect from such an arrangement. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 416 (2007). Therefore, the ordinarily skilled
artisan, being “a person of ordinary creativity, not an automaton,” would
have been able to fit the teachings of the cited references together like pieces
of a puzzle to predictably result in an event-message clustering system for
storing in a permanent device incoming event messages assigned to
particular clusters according to similarity values extracted therefrom. Id. at
420–21. Because Appellant has not demonstrated that the Examiner’s
proffered combination would have been “uniquely challenging or difficult
for one of ordinary skill in the art,” we agree with the Examiner that the
proposed modification would have been within the purview of the ordinarily
skilled artisan. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Consequently, we are
satisfied that on the record before us, the Examiner has established by a
preponderance of the evidence that the combination of Cohen and Umanesan
renders claim 1 unpatentable. Accordingly, we are not persuaded of error in
the Examiner’s obviousness rejection of claim 1.
Regarding the rejections of claims 2–23, Appellant has not presented
separate patentability arguments or reiterated substantially the same
arguments as those previously discussed for patentability of claim 1. As
such, claims 2–23 fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv).

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VI. CONCLUSION
We affirm the Examiner’s provisional obviousness double patenting
rejection of claims 1, 12, and 23. We further affirm the Examiner’s
obviousness rejections of claims 1–23 under 35 U.S.C. § 103(a).

DECISION SUMMARY
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 12, 23
Nonstatutory
Double
Patenting
US Appl.
14/318,968, Cohen,
Umanesan
1, 12, 23
1–10, 12–21, 23 103 (a) Cohen, Umanesan 1–10, 12–21, 23
11, 22 103 (a) Cohen, Umanesan, Seshadri 11, 22
Overall Outcome 1–23

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED