Ex Parte Barsness et alDownload PDFPatent Trial and Appeal BoardMay 29, 201412244075 (P.T.A.B. May. 29, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 12/244,075 10/02/2008 Eric L. Barsness ROC920070508US1 1325 46797 7590 05/30/2014 IBM CORPORATION, INTELLECTUAL PROPERTY LAW DEPT 917, BLDG. 006-1 3605 HIGHWAY 52 NORTH ROCHESTER, MN 55901-7829 EXAMINER RENNER, BRANDON M ART UNIT PAPER NUMBER 2478 MAIL DATE DELIVERY MODE 05/30/2014 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 ERIC L. BARSNESS, DAVID L. DARRINGTON, AMANDA E. PETERS, and JOHN M. SANTOSUOSSO ____________ Appeal 2011-13577 Application 12/244,075 Technology Center 2400 ____________ Before JOSEPH F. RUGGIERO, ELENI MANTIS MERCADER, and CARL W. WHITEHEAD JR., Administrative Patent Judges. RUGGIERO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the Final Rejection of all of the pending claims 1-24. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Appeal Brief (filed Feb. 28, 2011) and the Answer (mailed May 12, 2011) for the respective details. We have considered in this Appeal 2011-013577 Application 12/244,075 2 decision only those arguments Appellants actually raised in the Brief. Any other arguments which Appellants could have made but chose not to make in the Brief are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii). Appellants’ Invention Appellants’ invention relates to identifying and recovering from resource leaks on compute nodes of a parallel computing system. Information about system resources available on a compute node in a clean state is stored in a resource monitor that compares the current resource availability to the clean state. See generally Abstract. Upon finding a resource leak, the resource monitor contacts a global resource manager to remove the resource leak. Id. Representative claim 1 is reproduced as follows: 1. A method for correcting resource leaks that occur on a parallel computing system having a plurality of compute nodes, comprising: determining a first resource availability level of a first compute node, of the plurality of compute nodes, in a clean state characterized by an absence of resource leaks on the first compute node; executing one or more computing tasks on the first compute node; determining a second resource availability level of the first compute node; comparing the first resource availability level to the second resource availability level to determine whether a resource leak has occurred on the first compute node; upon determining that a resource leak has occurred: removing the first compute node from a pool of compute nodes available to perform computing tasks, and invoking a corrective action to restore the resource availability level of the first compute node to the clean state; and Appeal 2011-013577 Application 12/244,075 3 after the clean state is restored on the first compute node, returning the first compute node to the pool of available compute nodes. The Examiner’s Rejections The Examiner’s Answer relies on the following prior art references: Anerousis US 2006/0048017 A1 Mar. 2, 2006 Findeisen US 2006/0173877 A1 Aug. 3, 2006 Sridharan US 2007/0271418 A1 Nov. 22, 2007 Claims 1, 3-5, 7, 8, 10-12, 14, 15, 17-19, and 21-24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Sridharan in view of Anerousis. Claims 2, 6, 9, 13, 16, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Sridharan in view of Anerousis and Findeisen. ANALYSIS Claims 1, 3-5, 7, 8, 10-12, 14, 15, 17-19, and 21-24 Appellants initially contend, with respect to the Examiner’s 35 U.S.C. § 103(a) rejection of representative independent claim 1, that the Examiner erred in interpreting Sridharan as teaching or suggesting the claimed limitation of “determining a first resource availability level of a first compute node, of the plurality of compute nodes, in a clean state characterized by an absence of resource leaks on the first compute node.”1 1 Appellants’ arguments are directed to the limitations appearing in independent claim 1. Appellants do not provide separate arguments with particularity for rejected claims 3-5, 7, 8, 10-12, 14, 15, 17-19, and 21-24. See App. Br. 11-16. Accordingly, we select claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(vii). Appeal 2011-013577 Application 12/244,075 4 According to Appellants, while Sridharan teaches firing a leak trigger in response to resource levels that exceed a threshold amount of resources, there is no teaching that equates the threshold to a “clean state” as claimed. App. Br. 13 (citing Sridharan, ¶ [0023]). In Appellants’ view, Sridharan may teach using memory amount thresholds in detecting resource leaks, but there is no teaching or suggestion “of measuring a clean state of resource availability on a compute node where no resource leaks are present.” Id. We find Appellants’ arguments unpersuasive of error in the Examiner’s stated position. Ans. 4-5. As explained by the Examiner, Sridharan teaches determining if a resource leak has occurred on a compute node by comparing available resource levels to a threshold level of resource availability. Ans. 13-14 (citing Sridharan, ¶¶ [0022-0024]). We agree with the Examiner that, as a result of the comparison operation in Sridharan, if no resource (memory) leak is detected, the compute node is in a “clean” state which is defined in the claim as the “absence of resource leaks.” Id. at 13. We also find unpersuasive Appellants’ contention that Anerousis does not overcome what the Examiner has identified as the deficiency in Sridharan, i.e., inter alia, a teaching of restoring the resource availability level of a compute node to a clean state upon determining that a resource leak has occurred. According to Appellants, while Anerousis teaches monitoring of the health of various instances of an application server, Anerousis discloses that a compute node and an application server are separate and distinct elements, i.e., a compute node is a hardware element that executes the application server software. App. Br. 14. As pointed out by the Examiner, however, Anerousis teaches monitoring the health of all nodes in an administrative domain and, further, Appeal 2011-013577 Application 12/244,075 5 that a health condition can be an erroneous state in hardware or software indicative of a present or anticipated malfunction. Ans. 15 (citing Anerousis, ¶¶ [0033]-[0034]). Accordingly, we agree with the Examiner’s determination that Anerousis’s teaching of monitoring both hardware and software supports the conclusion that Anerousis teaches resource management of an application server node, not just application software instances running on that node. Id. We further find unpersuasive Appellants’ contention that Anerousis’s teaching of restarting an application server instance does not remove a compute node from the compute node pool as claimed because Anerousis indicates that other instances of the restarted application server are executing on the compute node. App. Br. 15-16. We agree with the Examiner that Anerousis’s teaching of corrective actions involving restarting of an application server node would suggest to the ordinarily skilled artisan that the application server node in question would be removed from the application server environment to perform the corrective action. Ans. 15 (citing Anerousis, ¶ [0003]). We also find no error in the Examiner’s determination that Anerousis’s teachings would suggest that the application server node upon restart would be restored to the application server environment as claimed. Ans. 16 (citing Anerousis, ¶¶ [0045], [0051] and [0052]). The Supreme Court has held that in analyzing an obviousness rationale, a court need not find specific teachings, but rather may consider “the background knowledge possessed by a person having ordinary skill in the art” and “the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Appeal 2011-013577 Application 12/244,075 6 In view of the above discussion, we sustain the Examiner’s obviousness rejection of independent claim 1, as well as the rejection of claims 3-5, 7, 8, 10-12, 14, 15, 17-19, and 21-24 not separately argued by Appellants. Claims 2, 6, 9, 13, 16, and 20 We also sustain the Examiner’s obviousness rejection of dependent claims 2, 6, 9, 13, 16, and 20 in which Findeisen was applied to the Sridharan/Anerousis combination to address the resource allocation features of the rejected claims. Appellants have provided no separate arguments for the patentability of these claims but instead rely on arguments asserted with respect to representative independent claim 1, which arguments we found unpersuasive as discussed supra. Appeal 2011-013577 Application 12/244,075 7 CONCLUSION OF LAW Based on the analysis above, we conclude that the Examiner did not err in rejecting claims 1-24 for obviousness under 35 U.S.C. § 103(a).2 DECISION We affirm the Examiner’s decision rejecting claims 1-24 under 35 U.S.C. § 103(a). 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 tj 2 We have decided the appeal before us. We note, however, claims 8-14 and 23 recite a computer-readable storage medium. However, Appellants’ Specification does not define computer-readable storage medium to exclude transitory media. Consequently, the claimed storage medium encompasses transitory media, which is not patent eligible. See Ex parte Mewherter, 107 USPQ2d 1857 (PTAB 2013) (precedential). In the event of further prosecution, the Examiner should consider rejecting claims 8-14 and 23 under 35 U.S.C. § 101 as being directed to non-statutory subject matter. Copy with citationCopy as parenthetical citation