Ex Parte Bigus et al

Board of Patent Appeals and Interferences

Feb 26, 2009

10670149 (B.P.A.I. Feb. 26, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JOSEPH PHILIP BIGUS and DONALD ALLEN
SCHLOSNAGLE
____________________

Appeal 2008-2741
Application 10/670,149
Technology Center 2100
____________________

Decided:1 February 26, 2009
____________________

Before LANCE LEONARD BARRY, JAY P. LUCAS, and
THU A. DANG, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

1 The two month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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I. STATEMENT OF CASE
Appellants appeal the Examiner’s final rejection of claims 1-5, 7-13,
15-21, and 23-27 under 35 U.S.C. § 134(a)(2002). Claims 6, 14, and 22
have been canceled. We have jurisdiction under 35 U.S.C. § 6(b)(2002).

A. INVENTION
According to Appellants, the invention relates to determining the
status of a computing system and software applications running on that
system (Spec., Abstract).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary and is reproduced below:
1. A computer-implemented method of determining a health of a
computing system component, the computer-implemented method
comprising:

generating at least one fuzzy data set associated with at least one
measured metric of the computing system component, wherein the fuzzy
data set defines fuzzy regions indicating different categories of the measured
metric;

generating at least one fuzzy rule set associated with the at least one
measure metric, wherein the fuzzy rule set defines a relationship of the fuzzy
regions of the fuzzy data set to categories of computing system component
health; and

outputting the health of the computing system component based on
the at least one fuzzy data set and the at least one fuzzy rule set.
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C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Arnold US 5,822,301 Oct. 13, 1998

Bigus, Applying Neural Networks to Computer System Performance Tuning,
IEEE, (1994).

Claims 1-5, 7-13, 15-21, 23, and 24 stand rejected under 35 U.S.C.
§ 102(b) over the teachings of Arnold; and
Claims 25-27 stand rejected under 35 U.S.C. § 103(a) over the
teachings of Arnold and Bigus.
We affirm.

II. ISSUES
The issues are whether Appellants have shown that the Examiner
erred in finding that: 1) Arnold discloses “generating at least one fuzzy data
set associated with at least one measured metric of the computing system
component,” and “outputting the health of the computing system
component” (Claim 1); 2) Arnold discloses “at least one fuzzy rule set
includes at least one hedge” and “applying at least one hedge algorithm
associated with the at least one hedge to the metric data” (Claim 8); and 3) it
would have been obvious to combine the teachings of Arnold and Bigus.

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III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Appellants’ Invention
1. Appellants disclose determining the status of a computer system and
software applications running on that system (Abstract).
Arnold
2. Arnold discloses evaluating multi-part communication connections
between two parties to a communication in a multi-mode network
(col. 2, ll. 61-65).
3. Measured values to be acquired are determined for node dependability
(col. 3, ll. 22-27).
4. The measured values are processed with fuzzy logic in that at least
one fuzzy rule set is employed for each of the evaluation categories
(col. 3, ll. 29-46).
5. Metric parameters that describe aspects of the communication
connection can be utilized in the evaluation of the connection.
Measured quantities are acquired in the determination of the measured
parameters, that is, the routing metrics for the individual categories,
since statement about the conditions of the network is made (col. 3, l.
66 to col. 4, l. 14).

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IV. PRINCIPLES OF LAW
35 U.S.C. § 102
In rejecting claims under 35 U.S.C. § 102, a single prior art reference
that discloses, either expressly or inherently, each limitation of a claim
invalidates that claim by anticipation. Perricone v. Medicis Pharm.Corp.,
432 F.3d 1368, 1375-76 (Fed. Cir. 2005) (citation omitted). “Anticipation of
a patent claim requires a finding that the claim at issue ‘reads on’ a prior art
reference.” Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342, 1346 (Fed Cir.
1999) (“In other words, if granting patent protection on the disputed claim
would allow the patentee to exclude the public from practicing the prior art,
then that claim is anticipated, regardless of whether it also covers subject
matter not in the prior art.”) (citations omitted).
The claims measure the invention. See SRI Int’l v. Matsushita Elec.
Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). "[T]he PTO gives
claims their 'broadest reasonable interpretation.'" In re Bigio, 381 F.3d
1320, 1324 (Fed. Cir. 2004) (quoting In re Hyatt, 211 F.3d 1367, 1372 (Fed.
Cir. 2000)). "Moreover, limitations are not to be read into the claims from
the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993)
(citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)).

35 U.S.C. § 103
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
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obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). “[T]he examiner bears
the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). Furthermore,
“‘there must be some articulated reasoning with some
rational underpinning to support the legal conclusion of
obviousness’ . . . [H]owever, the 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 Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007) (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).

V. ANALYSIS
35 U.S.C. § 102
Claims 1-5, 7, 9-13, 15, 17-21, and 23
Appellants do not provide separate arguments with respect to the
rejection of claims 1-5, 7, 9-13, 15, 17-21, and 23. Therefore, we select
independent claim 1 as being representative of the cited claims. 37 C.F.R.
§ 41.37(c)(1)(vii).
In the Appeal Brief, Appellants argue that Arnold does not disclose
“generating at least one fuzzy data set associated with at least one measured
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metric of the computing system component,” or “outputting the health of the
computing system component” (App. Br. 12) because “a communication
connection as in Arnold is not the same as a computing system” (App. Br.
13). However, the Examiner finds “the communication connections in
communication network of Arnold to read on a computing system
component” (Ans. 12), and “‘a reliable statement [in Arnold] about the
respective condition of the network’ to read on ‘the health of a computing
system’” (Ans. 13). Thus, the issue that we address on appeal is whether
Arnold discloses “generating at least one fuzzy data set associated with at
least one measured metric of the computing system component,” and
“outputting the health of the computing system component” (claim 1).
We begin our analysis by giving the claims their broadest reasonable
interpretation. See In re Bigio at 1324. Furthermore, our analysis will not
read limitations into the claims from the specification. See In re Van Geuns
at 1184. It is the Appellants’ burden to precisely define the invention. See
In re Morris 127 F.3d 1048, 1056 (Fed. Cir. 1997). Appellants’ claims
simply do not place any limitation on what “component” in “computing
system component” or “health” means, includes or represents, other than
that the health of the computing system component is determined.
We thus give “component” its ordinary meaning of “an entity making
up a whole” and therefore we find “computing system component” to be any
entity that makes up a computing system. Similarly, we give “health” its
ordinary meaning of “condition” or “status,” and thus, “health of a
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computing system component” to be “condition or status of an entity in the
computing system.” In fact, Appellants’ own invention is directed to
“determining the status of a computer system” (FF 1).
We note that a “system” comprising a plurality of computers
connected to a network could be considered a “component” of a bigger
computing system comprising a plurality of smaller systems. That is, such
smaller system along with other smaller systems could make up the entire
bigger system. As the Examiner finds, “the communication networks are
complex systems that contain several thousand components” (Ans. 12).
We generally agree with the Examiner’s finding that Arnold discloses
the claimed elements on appeal beginning at page 4 of the Answer, and
including the Examiner’s corresponding responsive arguments beginning at
page 10 of the Answer. In the Examiner Answer, the Examiner finds, “‘a
reliable statement about the respective condition of the network’ to read on
the health of a computing system [component]” (Ans. 13).
Arnold discloses generating fuzzy data set and generating fuzzy rule
set (FF 4) for evaluating network condition (FF 2) and determining
conditions of the network (FF 5), wherein such condition determination
includes determining node dependability (FF 3). We find that such
determining step for determining the condition (or status) of the network
including the nodes of the network to read upon determining the health of a
system component. That is, we find that a “computing system component”
could include the network, the subnetwork, or nodes within the network or
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subnetwork. An artisan would have understood the step of determining the
condition or status of the network including determining node dependability
to be a determining step for determining the condition of the
node/component.
Therefore, we agree with the Examiner that Arnold discloses
“generating at least one fuzzy data set associated with at least one measured
metric of the computing system component,” and “outputting the health of
the computing system component” as claimed (claim 1). That is, we find
Arnold’s teaching of determining the condition or status of the network to
read on Appellants’ own invention directed to “determining the status of a
computer system” (FF 1).
Though Appellants also argue that “[a] network simply is not a device
as in claim 1” (App. Br. 14), such argument is not commensurate with claim
1. That is, “device” is not claimed by the Appellants in claim 1.
Accordingly, we conclude that the Appellants have not shown that the
Examiner erred in rejecting independent claim 1, and claims 2-5, 7, 9-13, 15,
17-21, and 23 falling with claim 1, under 35 U.S.C. § 102(e).

Claims 8, 16, and 24
Appellants also argue that Arnold differs from the claimed invention
because “Arnold does not teach the feature ‘wherein the at least one fuzzy
rule set includes at least one hedge’” as recited in claim 8 (App. Br. 17).
However, the Examiner finds that Arnold discloses such feature (Ans. 16-
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17). Thus, the issue that we address on appeal is whether Arnold discloses
“at least one fuzzy rule set includes one hedge” and “applying at least one
hedge algorithm associated with the at least one hedge” (claim 8).
We begin our analysis by giving the claims their broadest reasonable
interpretation since Appellants’ claims simply do not place any limitation on
what “hedge” represents, other than that the hedge algorithm is applied.
We agree with the Examiner’s finding that Arnold discloses the
claimed elements on appeal beginning at page 6 of the Answer, and
including the Examiner’s corresponding responsive arguments beginning at
page 16 of the Answer. As the Examiner finds, in Arnold, “the formulation
of the rules is a heuristic… evaluated” (Ans. 17).
We agree with the Examiner that such a heuristic scheme includes an
“algorithm” that is applied and that is associated with portions of the fuzzy
rule set, including the hedge in the fuzzy rule set. We thus agree with the
Examiner that Arnold discloses “at least one fuzzy rule set includes one
hedge” and “applying at least one hedge algorithm associated with the at
least one hedge to the metric data” (Claim 8).
Accordingly, we conclude that the Appellants have not shown that the
Examiner erred in rejecting independent claims 8, 14, and 22 under
35 U.S.C. § 102(e).
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35 U.S.C. § 103(a)
Claims 25-27
As to claims 25-27, Appellants add the argument that “Bigus does not
overcome the deficiencies of Arnold” (App. Br. 19), and that “the Examiner
has not actually stated a teaching or suggestion based on the references to
combine the references” (App. Br. 20).
As discussed above, we do not find any deficiencies in Arnold.
Further, to address the issue of whether Appellants have shown there is error
in the Examiner’s finding that it would have been obvious to combine the
teachings of Arnold and Bigus, we must determine whether or not the
differences between the subject matter sought to be patented and the prior art
are such that the subject matter as a whole would have been obvious at the
time the invention was made to a person having ordinary skill in the art to
which said subject matter pertains. See KSR, 127 S. Ct. at 1734.
Obviousness determination is not the result of a rigid formula disassociated
from the consideration of the facts of a case, and the common sense of those
skilled in the art demonstrates why some combinations would have been
obvious where others would not. See Leapfrog, 485 F.3d 1157, 1161 (Fed.
Cir. 2007). That is, the test for obviousness is rather what the combined
teachings of the references would have suggested to those of ordinary skill
in the art. See In re Keller, 642 F.2d 413, 425 (CCPA 1981); In re Young,
927 F.2d 588, 591 (Fed. Cir. 1991).
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As the Examiner finds “both Arnold and Bigus are directed to
computing system and using measured metrics to evaluate its performance”
(Ans. 22). We find that combining the teachings “to maximize system
efficiency” as found by the Examiner (Ans. 9) would require no more than
"ordinary skill and common sense" (KSR, 127 S. Ct. at 1742). Appellants
have presented no evidence that adding the teaching of “using key system
performance measures of Bigus” (id.) to the “health of a computing system
component of Arnold” (id.) "was uniquely challenging or difficult for one of
ordinary skill in the art," nor have Appellants presented evidence that this
"represented an unobvious step over the prior art." See Leapfrog, 485 F.3d
at 1162.
A person of ordinary skill will be able to fit the teachings of Arnold
and Bigus together like pieces of a puzzle since the “person of ordinary skill
is also a person of ordinary creativity, not an automaton.” See KSR, 127 S.
Ct. at 1742. The person of ordinary skill and common sense would find it
obvious to combine the teachings “to maximize system efficiency” as found
by the Examiner (Ans. 9). Appellants have not presented any evidence to
indicate why it would not have been obvious to combine the references.
Thus, we find that Appellants have not met the burden on appeal to
demonstrate error in the Examiner’s position. See In re Kahn, 441 F.3d at
985-86.
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Accordingly, we conclude that the Appellants have not shown that the
Examiner erred in rejecting independent claims 25-27 under 35 U.S.C.
§ 103(a).

VI. CONCLUSIONS OF LAW
(1) Appellants have not shown that the Examiner erred in finding that
claims 1-5, 7-13, 15-21, and 23-24 are anticipated the teachings of Arnold.
(2) Appellants have not shown that the Examiner erred in finding that
claims 25-27 are unpatentable over the teachings of Arnold in view of Bigus.
(3) Claims 1-5, 7-13, 15-21, and 23-27 are not patentable.

VII. DECISION
The Examiner's decision rejecting claims 1-5, 7-13, 15-21, and 23-24
under 35 U.S.C. § 102(b) and claims 25-27 under 35 U.S.C. § 103(a) is
affirmed.

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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

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DUKE W. YEE
YEE & ASSOCIATES, P.C.
P.O. BOX 802333
DALLAS TX 75380