Ex Parte Dudek et al

Patent Trial and Appeal Board

Mar 18, 2016

13541474 (P.T.A.B. Mar. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/541,474 07/03/2012
127893 7590 03/18/2016
Streets & Steele - Lenovo (Singapore) Pte. Ltd.
13100 Wortham Center Drive
Suite 245
Houston, TX 77065
FIRST NAMED INVENTOR
Clark A. Dudek
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
XRPS9201l0008US2 1832
EXAMINER
ELMORE, GREGORYM
ART UNIT PAPER NUMBER
2437
MAILDATE DELIVERY MODE
03/18/2016 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 CLARK A. DUDEK, PHILLIP D. JONES, DAVID B. ROBERTS,
IAN C. TEWKSBURY and PING ZHOU
Appeal2015-007715
Application 13/541,474
Technology Center 2400
Before ROBERT E. NAPPI, JEFFREY A. STEPHENS, and
NATHAN A. ENGELS, Administrative Patent Judges.
NAPPI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1 through 9.
We affirm in part.
INVENTION
Appellants' invention relates to a method in which a first compute
node broadcasts a workload bid request to a plurality of compute nodes,
wherein the workload bid request includes workload parameters
characterizing the workload. See Abstract. Claim 1 is illustrative of the
invention and reproduced below:
Appeal2015-007715
Application 13/541,474
1. A computer-implemented method for workload
management, comprising:
a first compute node broadcasting a workload bid request
to a plurality of compute nodes, wherein the workload bid
request includes workload parameters characterizing the
workload;
the plurality of compute nodes each receiving the
workload bid request from the first compute node, wherein each
of the plurality of compute nodes uses the workload parameters
included in the workload bid request to calculate a cost of
running the workload;
one or more individual compute nodes within the
plurality of compute nodes each sending a workload bid to the
first compute node, wherein each workload bid includes the
cost of running the workload on the individual compute node
sending the workload bid; and
the first compute node receiving each workload bid and
using each workload bid to select a target compute node to run
the workload, wherein the target compute node is selected from
the one or more individual compute nodes and the first compute
node.
REJECTIONS AT ISSUE
The Examiner has provisionally rejected claims 1 through 9 based
upon non-statutory obviousness double patenting over claims 1 through 18
of copending application 13/102,538. Answer 2. 1
The Examiner has rejected claims 1through9 under 35 U.S.C.
§ 102(b) as anticipated by Fellenstein et al. (US 2006/00152756 Al; July
13, 2006). Answer 2.
ISSUES
1 Throughout this Opinion we refer to the Appeal Brief (filed Feb. 5, 2015)
("App. Br."), the Examiner's Answer (mailed June 16, 2016) ("Ans."), and
the Specification (filed July 3, 2012) ("Spec.").
2
Appeal2015-007715
Application 13/541,474
Double Patenting Rejection
Appellants have not addressed the Examiner's double patenting
rejection. Nonetheless, we decline to reach the provisional rejection as the
issues are not ripe for decision. See Ex parte Moncla, 95 USPQ2d 1884,
1885 (BP AI 2010) (precedential).
Rejection under 35 U.S.C. § 102
Claim 1
Appellants argue on pages 7 and 8 of the Appeal Brief that the
Examiner's rejection of claim 1 is in error. These arguments present us with
the issue: Did the Examiner err in finding that Fellenstein teaches a target
compute node is selected from the one or more individual compute nodes
and the first compute node?
Claim 3
Appellants' arguments directed to claim 3, on pages 8 and 9 of the
Appeal Brief, present us with the issue: Did the Examiner err in finding that
F ellenstein teaches the first compute node target selecting the first compute
node to run the bid workload?
Claim 4
Appellants' arguments directed to claim 4, on pages 8 and 9 of the
Appeal Brief, present us with the issue: Did the Examiner err in finding that
Fellenstein teaches that the workload bid includes a cost function that the
plurality of compute nodes used to calculate the cost of running the
workload?
3
Appeal2015-007715
Application 13/541,474
Claim 7
Appellants' arguments directed to claim 7, on pages 10 and 11 of the
Appeal Brief, present us with the issue: Did the Examiner err in finding that
Fellenstein teaches broadcasting to the plurality of nodes, that the bid has
been awarded?
ANALYSIS
Rejections under 35 U.S.C. § 102
Claims 1, 2, 5, and 6
With respect to the limitation in dispute, the Examiner finds
Fellenstein teaches that the client, which is equated to the claimed first node,
is also a member of the grid (group of nodes considered to do work
associated with bid requests). Ans. 4 (citing Fellenstein paras. 38, 44, 45,
and 66); Non-final Act. 8 (citing same). We have reviewed the Examiner's
findings and the cited teaching ofFellenstein, and we concur with the
Examiner. Appellants' arguments directed to the first issue center around
the assertion that:
the disclosure that client system 200 may operate within the grid
environment 240 DOES NOT DISCLOSE that the client system
would receive the broadcast, that the client system would participate
in the bidding process, or that the client system might run the job
itself.
App. Br. 7. We are not persuaded that Fellenstein's disclosure is as limited
as Appellants assert. As the Examiner has identified, F ellenstein discloses a
client system that requests bids and "may also operate within grid [the]
environment.". Ans. 4 (citing Fellenstein paras. 38, 44, 45, and 66). We do
not find evidence to support Appellants' assertion, and accordingly, do not
4
Appeal2015-007715
Application 13/541,474
consider Appellants to have demonstrated the Examiner's finding to be
erroneous. Further, Appellants' argument directed to inherency (App. Br. 8)
is misplaced as the Examiner has not relied upon inherency; the Examiner
finds that the disputed limitation is explicitly disclosed in Fellenstein (Ans.
4). Accordingly, Appellants' arguments have not persuaded us of error in
the Examiner's rejection of claim 1 and we sustain the rejection.
Appellants have not presented separate arguments directed to
dependent claims 2, 5 and 6, and we similarly sustain the Examiner's
rejection of these claims.
Claim 3
Appellants' arguments directed to claim 3 are similar to the second
issue discussed above with respect to claim 1. The Examiner's responds in a
manner similar to that discussed above with respect to claim 1.
Accordingly, we sustain the Examiner's rejection of claim 3 for the reasons
discussed above with respect to claim 1.
Claim 4
Appellants' arguments directed to claim 4 assert F ellenstein teaches a
cost function, but does not disclose that a bid includes a cost function. App.
Br. 9. The Examiner, in response to Appellants' arguments, finds that
Fellenstein's bid request includes a job cost, which can include a formula
(i.e., a function). Ans. 6 (citing Fellenstein para. 92 (stating that an RFP can
include "job cost limits" that include formulas or multiple conditioned
costs)). We concur with the Examiner and do not find Appellants'
arguments persuasive of error, and we sustain the Examiner's rejection of
claim 4.
5
Appeal2015-007715
Application 13/541,474
Claims 7 through 9
Appellants' arguments directed to claim 7 assert the Examiner erred in
finding that Fellenstein teaches broadcasting to the plurality of nodes that the
bid has been awarded. App. Br 10-11. The Examiner, in response to
Appellants' arguments, finds Fellenstein teaches that there can be a plurality
of client systems within a peer-to-peer network and that, because the grid
client has a request for quote queue, the system must broadcast to all grid
providers in order for the queues to be updated. Ans. 7 (citing Fellenstein
paras. 38, 45, and 72). We disagree with the Examiner as we find
insufficient evidence to show that information related to the awarded bid is
broadcast to nodes in the grid other than the one awarded the bid.
Accordingly, we will not sustain the Examiner's rejection of claim 7.
Appellants' arguments directed to claims 8 and 9 similarly assert error
in the Examiner's finding that Fellenstein teaches broadcasting information
concerning the awarded bid to nodes not awarded the bid. We concur, claim
8 and claim 9, which depends upon claim 8, recite broadcasting to the
plurality of nodes the cost included in the bid of the node selected to receive
the workload. Accordingly, we do not sustain the Examiner's rejection of
claims 8 and 9 for the same reasons discussed with respect to claim 7.
DECISION
We sustain the Examiner's rejection of claims 1 through 6 and do not
sustain the Examiner's rejection of claims 6 through 9. The decision of the
Examiner to reject claims 1 through 9 is affirmed in part.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
6
Appeal2015-007715
Application 13/541,474
AFFIRMED-IN-PART
7