Ex Parte Gmach et al

Patent Trial and Appeal Board

Oct 28, 2016

12916292 (P.T.A.B. Oct. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/916,292 10/29/2010 Daniel Juergen Gmach
56436 7590 11/01/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82264214 9322
EXAMINER
SAXENA, AKASH
ART UNIT PAPER NUMBER
2128
NOTIFICATION DATE DELIVERY MODE
11/01/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL JUERGEN GMACH, CULLEN E. BASH,
JEROME ROLIA, YUAN CHEN,
THOMAS W. CHRISTIAN, AMIP J. SHAH,
RATNESH KUMAR SHARMA, and ZHIKUI WANG
Appeal2015-006036
Application 12/916,292
Technology Center 2100
Before JOHN F. HORVATH, AMBER L. HAGY, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
SZPONDOWSKI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify the real party in interest as Hewlett-Packard
Development Company, LP. App. Br. 3.
Appeal2015-006036
Application 12/916,292
STATEMENT OF THE CASE
Appellants' invention is directed to generating a resource management
plan for an infrastructure. Spec. i-f 9. Claim 1, reproduced below with the
disputed limitations in italics, is representative of the claimed subject matter:
1. A method for generating a resource management plan for an
infrastructure, said method comprising:
a) determining a supply of resources available from a
combination of available resource sources;
b) simulating, using a processor, an operation of the
infrastructure in performing an objective using the determined supply
of resources, wherein the simulation is to simulate resource demand
of a plurality of infrastructure components in performing the
objective, wherein the resource demand is based at least upon
historical demand determinations;
c) determining at least one metric associated with operating the
infrastructure based upon the simulation, wherein the at least one
metric comprises a central processing unit (CPU) violation penalty
that measures a level of CPU violations based on a number of
successive intervals in which a resource demand is not satisfied, and
wherein the CPU violation penalty provides a penalty weight for each
CPU violation based on an expected impact of each CPU violation on
an end user;
d) determining whether the at least one metric satisfies at least
one predetermined goal;
e) modifying at least one of the resources supplied by the
combination of available resource sources and the simulation of the
resource demand of the plurality of infrastructure components in
response to the at least one metric failing to satisfy the at least one
predetermined goal; and
t) generating a resource management plan for the infrastructure
that includes a mix of the resources supplied and the resource demand
2
Appeal2015-006036
Application 12/916,292
that have been determined to result in the at least one metric satisfying
the at least one predetermined goal.
REJECTIONS
Claims 1---6, 9-16, 19, and 20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Prith Banerjee et. al,
Sustainable Data Centers: Enabled by Supply and Demand Side
Management, ACM, DAC'09 July 26-31, at 884-887 ("Banerjee"),
Huberman et al. (US 7,386,537 B2; issued June 10, 2008) ("Huberman") and
Korn et al. (US 2010/0114531 Al; published May 6, 2010) ("Korn").
Claims 7 and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Banerjee, Huberman, Korn, and Li et
al. (US 2011/0144818 Al; published June 16, 2011) ("Li").
Claims 8 and 18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Banerjee, Huberman, Korn, and
Xiaoying Wang et al., Virtualization-based autonomic resource management
for multi-tier Web applications in shared data center, The Journal of
Systems and Software 81 at 1591-1608 (2008) ("Wang").
ANALYSIS
After considering of each of Appellants' arguments, we agree with the
Examiner. We refer to and adopt the Examiner's findings and conclusions
as set forth in the Examiner's Answer and in the action from which this
appeal was taken. Ans. 3-9; Final Act. 2-14. Our discussions here will be
limited to the following points of emphasis.
3
Appeal2015-006036
Application 12/916,292
Issue 1: Did the Examiner err in finding the combination of Banerjee,
Huberman, and Korn teaches or suggests "wherein the simulation is to
simulate resource demand of a plurality of infrastructure components in
performing the objective, wherein the resource demand is based at least
upon historical demand determinations," as recited in independent claim 1,
and commensurately recited in independent claims 12 and 20?
Appellants contend "the Examiner has construed the 'resources' in
Huberman as equivalent to the 'resources' recited in independent claim 1 [,]"
which is improper because the "resources" described in Huberman "pertain
to computer systems, whereas the 'resources' in independent claim 1 pertain
to resources supplied to infrastructure components, such as computer
systems." App. Br. 11; Reply Br. 6. Appellants further contend "the
applications discussed in Huberman are not infrastructure components ...
because the applications are not physical components of an infrastructure,
but instead, are software executed on computer systems." App. Br. 10.
Appellants argue the Examiner's construction "would require the supply of
computer systems to infrastructure components, which are hardware
components . . . . In contrast, independent claim 1 recites that an operation
of an infrastructure is simulated using a determined supply of resources,
such as electricity and cooling resources, available to be supplied to
infrastructure components, such as computer systems, servers, etc." App.
Br. 11.
We are not persuaded by Appellants' arguments. "Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a cornbination of references." In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Thus, Hubennan must
4
Appeal2015-006036
Application 12/916,292
"be read, not in isolation," as Appellants have done, '"but for what it fairly
teaches in combination with the prior art as a whole." Id. The Examiner
relies on Bane~jee, not Huberman, to teach the claimed resources and
infrastructure components. Final Act 4-5, citing Bane1:jee pp. 884-885;
Ans. 4. Specifically, Banerjee teaches "resources including IT, power and
cooling," and hardware, power, and cooling infrastn1cture. Banerjee pp.
884---885; see Ans. 4; see also Banerjee p. 885, refeffing to "computing,
power, and cooling resources.'' The Examiner relies on Huberman to teach
the resource demand is based at least upon historical dernand determinations.
Final Act. 6, citing Huberman Fig. 4; Ans. 4. Thus, Appellants' arguments,
which are substantially directed to Huberman's disclosure, do not
persuasively address the Examiner's reliance on Bane1jee, nor the
combination of Huberman with Bane1jee as relied upon by the Examiner.
Moreover, Appellants' arguments are not commensurate with the
scope of claim 1 because claim 1 does not recite resources are limited to
electricity and cooling resources. Appellants have not explicitly defined
"resources" in the Specification. We do not find the Examiner's
construction that resources include IT (hardware and software), power, and
cooling to be unreasonable under the broadest reasonable interpretation in
light of Appellants' Specification. See Ans. 4--6. Regardless, as described
supra, Banerjee teaches power and cooling resources (Banerjee p. 884,
Abstract), which Appellants do not dispute. See App. Br. 11; Reply Br. 7-8.
Appellants also do not dispute that Banerjee teaches IT, power, and cooling
infrastructures consuming such resources. Reply Br. 7. We therefore agree
with the Examiner's findings that the combination of Banerjee and
Huberman teaches the disputed limitation.
5
Appeal2015-006036
Application 12/916,292
Appellants further argue the Examiner's proposed modification to
Banerjee "would result in a simulation in which computer systems are
supplied to other hardware components, such as computer systems, which is
clearly improper." App. Br. 11. Therefore, according to Appellants, the
proposed modification would render Banerjee unsatisfactory for its intended
purpose. App. Br. 12.
We are not persuaded by Appellants' arguments. "The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference. . . . Rather,
the test is what the combined teachings of those references would have
suggested to those of ordinary skill in the art." In re Keller, 642 F.2d 413,
425 (CCPA 1981). Moreover, Appellants' arguments do not persuasively
address the Examiner's specific findings. The Examiner finds it would have
been obvious to one of ordinary skill in the art to apply the teachings of
Huberman to Banerjee because "Huberman teaches [the] importance of
incorporating historical data into resource demand estimation and optimizing
the resources so they are never in excess or short." Final Act. 7. The
Examiner need only provide "some articulated reasoning with some rational
underpinning to support [a] legal conclusion of obviousness." KSR Int'l Co.
v. Teleflex Inc., 550 U.S. 398, 418 (quoting In re Kahn, 441F.3d977, 988
(Fed. Cir. 2006). We find the Examiner has done so here.
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Banerjee, Huberman, and Korn teaches or suggests the
disputed limitation.
6
Appeal2015-006036
Application 12/916,292
Issue 2: Did the Examiner err in finding the combination of
Huberman, Banerjee, and Korn teaches or suggests "wherein the at least one
metric comprises a central processing unit (CPU) violation penalty that
measures a level of CPU violations based on a number of successive
intervals in which a resource demand is not satisfied," as recited in
independent claim 1, and commensurately recited in independent claims 12
and 20?
The Examiner relies on paragraph 13 and Figures 2 and 3 of Korn to
teach or suggest the disputed limitation. Final Act. 7. Appellants contend
Korn "fails to disclose that the failure to provide the agreed upon number of
CPU cycles is based upon a number of successive intervals in which a
resource demand is not satisfied." App. Br. 13. Appellants also contend
"Korn fails to disclose that the CPU cycles are at all based on any interval in
which a resource demand is not satisfied." Id. Further, Appellants argue "a
time window, e.g., 3 seconds, is merely a single time interval and cannot
reasonably construed as a number of successive intervals." App. Br. 13; see
also Reply Br. 9. Appellants also argue the "3 seconds" in Korn pertains to
the "maximum allowable response time for service requests" and not to the
"CPU cycles." Reply Br. 9.
We are not persuaded by Appellants' arguments. Paragraph 13 of
Korn describes that penalties may be assessed on a service provider for
failure to meet service level objectives. Paragraph 13 further states:
In a general sense, the [service level objectives] represent the
level of service contracted for by the customer and may include,
for instance, the percentage service availability during a
specified time window (e.g., 99.95% availability from 8:00
a.m.-11:00 p.m. EST Monday-Friday), the maximum allowable
response time for service requests during the time window (e.g.,
7
Appeal2015-006036
Application 12/916,292
3 seconds), etc. Other objectives may include average
throughput, CPU cycles, etc.
As noted by the Examiner, Appellants have not defined an interval in
the Specification, nor how many successive intervals are required for a
violation. See Ans. 8. We agree with the Examiner that, under the broadest
reasonable interpretation in light of the Specification, the described 3
seconds may be interpreted as "at least 3 successive intervals ... wherein
after that period there is a violation if the response time for a service request
is not received." Ans. 8. Moreover, given the description of a CPU
violation penalty in Appellants' Specification, we are not persuaded by
Appellants' argument that Korn's 3-second interval does not apply to a CPU
violation penalty. See Spec. i-f 51 ("based on the number of successive
intervals in which a workload's demands are not fully satisfied").
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Banerjee, Huberman, and Korn teaches or suggests the
disputed limitation.
Issue 3: Did the Examiner err in finding the combination of Banerjee,
Huberman, and Korn teaches or suggests "wherein the CPU violation
penalty provides a penalty weight for each CPU violation based on an
expected impact of each CPU violation on an end user," as recited in
independent claim 1, and commensurately recited in independent claims 12
and 20?
8
Appeal2015-006036
Application 12/916,292
The Examiner relies on Figures 2 and 3 and paragraphs 13 through 17
of Korn to teach or suggest the disputed limitation. Final Act. 7; Ans. 9. 2
Appellants argue Korn does not "describe how the 'weighting' discussed in
[paragraph 13] is determined and thus clearly does not disclose that the
'weighting' is 'based on an expected impact of each CPU violation on an
end user.' In fact, Korn does not disclose that the 'weighting' is based on a
CPU violation at all." App. Br. 14. Appellants also contend "Korn clearly
fails to disclose that an expected impact of each CPU violation on an end
user is determined." Reply Br. 12.
We are not persuaded by Appellants' arguments. Korn describes that
penalties may be assessed for failure to meet service level objectives. Korn
i-f 13. As described supra, Korn describes such service level objectives as
the maximum allowable response time for service requests during the time
window and CPU cycles. Korn i-f 13. Korn further describes that whether a
penalty is imposed, and the size of any imposed penalty, are dependent on
the terms set forth in the customer's service level agreement. Korn i-f 15.
Such terms of the service level agreement may result in more severe
penalties for customers that have contracted for a higher level of service.
Korn i-fi-1 15-17. We agree with the Examiner that such disclosure teaches or
suggests the disputed limitation. See Ans. 9. Therefore, we are not
persuaded the Examiner erred in finding the combination of Banerjee,
Huberman, and Korn teaches or suggests the disputed limitation.
2 As Appellants point out (Reply Br. 11-12), the Examiner appears to have
mistakenly referred to Huberman, rather than Korn, in certain portions of the
Answer in addressing this limitation.
9
Appeal2015-006036
Application 12/916,292
Accordingly, we are not persuaded the Examiner erred in rejecting
independent claims 1, 12, and 20 under 35 U.S.C. § 103(a). For the same
reasons, we sustain the Examiner's rejection of dependent claims 2---6, 9-11,
13-16, and 19, which were not separately argued.
With respect to dependent claims 7117 and 8/18, Appellants argue the
Examiner erred because the Examiner "merely asserted that it would have
been obvious to modify just Banerjee" and such "modification is clearly
deficient because any proper modification would necessarily have to be
made to the proposed combination of Banerjee, Huberman, and Korn." App.
Br. 17, 18. We are not persuaded by this argument as it fails to persuasively
address why the Examiner's proposed modification to Banerjee with the
disclosure in Li or Wang is in error. Claims 7117 and 8/18 depend from
independent claims 1 and 12, and thereby incorporate the Examiner's
findings with respect to Huberman and Korn.
DECISION
For the above reasons, the Examiner's rejection of claims 1-20 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
10