Ex Parte Gruen et al

Patent Trials and Appeals Board

Jun 28, 2019

13016355 - (D) (P.T.A.B. Jun. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/016,355 01/28/2011 Daniel M. Gruen
46321 7590 07/02/2019
Shutts & Bowen LLP
STEVEN M. GREENBERG
525 Okeechobee Blvd
# 1100
West Palm Beach, FL 33401
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.
CAM920110003US1 (271) 4388
EXAMINER
FORTINO, ASHLEY
ART UNIT PAPER NUMBER
2143
NOTIFICATION DATE DELIVERY MODE
07/02/2019 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):
docketing@crgolaw.com
aschneider@shutts.com
PMetlika@shutts.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL M. GRUEN, PAUL B. MOODY, and DA WEI SHEN
Appeal2018-007493
Application 13/016,355
Technology Center 2100
Before ALLEN R. MacDONALD, MICHAEL J. ENGLE, and
IFTIKHAR AHMED, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
This is a decision on Appellants' Request for Rehearing. 1 Appellants'
Request for Rehearing is filed under 37 C.F.R. § 41.52(a)(l) requesting that
we reconsider our Decision of April 4, 2019 ("Decision"), wherein we
1 "The request for rehearing must state with particularity the points believed
to have been misapprehended or overlooked by the Board. Arguments not
raised, and Evidence not previously relied upon, pursuant to § § 41.3 7, 41.41,
or 41.4 7 are not permitted in the request for rehearing except as permitted by
paragraphs (a)(2)through (a)(4) of this section." 37 C.F.R. § 41.52(a)(l).
Appeal2018-007493
Application 13/016,355
affirmed the Examiner's 35 U.S.C. § 103(a) rejections of claims 1, 3---6, 8-
11, and 13-15. We have reviewed our Decision in view of the Request for
Rehearing ("Request" or "Req. Reh'g"), and have found no errors. We,
therefore, decline to change the Decision.
Appellants' request is DENIED.
Appellants ' Contention
Appellants contend that the Board Decision erred because:
[ A ]t page 9 of the Appeal Brief, Appellants in reference to
paragraphs [0350] and [0351] of Sankaranayaran [sic]2 noted
that Sankaranayaran referred only to a "statesless [sic] resource
provider" allocated to a current activity in a particular quantity
without the knowledge of the owning application.
Req. Reh'g 3 (emphasis added).
[ A ]t page 10 of the Appeal Brief, Appellants emphasized,
"Examiner admits that the teachings of Sankaranayaran never
consider the timing of any of the resources since they are
stateless." Accordingly, Appellants concluded at pages 10 and
11 of the Appeal Brief, that since the "stateless resource
providers" of Sankaranayaran had no knowledge of time, it was
simply not possible for those resource providers to filter any
event based upon time.
Req. Reh'g 4 (emphasis added).
In the Decision, however, the Board disagreed stating the
following at page 5 of the Decision:
As to Appellants' above assertions, we are not
persuaded that the Examiner erred. First, we find
no support in Sankaranarayan for Appellants'
contention that "the language of Sankaranayaran
prohibits the stateless resources from having a
2 The correct spelling is "Sankaranarayan." To the extent that Appellants
use other spellings, we do not further note or correct them.
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Application 13/016,355
consideration of time." Reply Br. 5 ( emphasis
added). Rather, Sankaranarayan at paragraph 350
merely states that "[ t ]he stateless resource providers
are configured with no concept of time." These two
statement are not shown by Appellants to be
equivalent.
Thus, the Board appears to assert that the statement that stateless
resources are configured with no concept of time is different than
the argument by Appellants that the stateless resource providers
are prohibited from having a consideration of time. Indeed, these
statements essentially are the same. In Sankaranayaran, it is
admitted that the stateless resources are configured without
concept of time. That means no concept of time is included--
ever--in configuring the stateless resources. Examiner has
*admitted* the foregoing on the record as noted at page 10 of
the Appeal Brief. Because the claim language of Appellants'
broad claims absolutely and unequivocally require the
consideration of the concept of time, then, it is absolutely,
factually impossible (and thus demonstrative of clear error) to
conclude that Sankaranayaran can account for the foregoing
limitation that Examiner admitted on the record to be absent in
the remaining teachings of Bollapragada and Welsh.
Req. Reh'g 4--5 (quoting Decision 5) (emphases added).
ANALYSIS
A.
In the Appeal Brief, Appellants contend the Examiner erred in
rejecting claim 1 under 35 U.S.C. § 103(a). Appellants first assert:
Examiner admits that the teachings of Sankaranayaran never
consider the timing of any of the resources since they are
stateless. Indeed, paragraph [0350] of Sankaranayaran states:
The stateless resource providers are configured with
no concept of time and hence, have no idea whether
they are being requested now or in the future[.]
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Application 13/016,355
App. Br. 10 ( emphasis added). Appellants then contend:
As such, since the "stateless resource providers" of
Sankaranayaran have no knowledge of time, it is simply not
possible for those resource providers to filter any event based
upon time. Yet, so much is required by Appellants' plain claim
language.
App. Br. 10-11 (emphasis added). The Decision reproduced this two
sentence contention at page 4 and addressed it at page 5 thereof. However,
we did not reproduce nor otherwise emphasize Appellants' incorrect
assertion that the "Examiner admits." However, Appellants now repeatedly
assert that the Examiner has made admissions on the record (reproduced
above). Appellants are mistaken. The Examiner is not a "party" to the
appeal. Rather, the Examiner performs a quasi-judicial function and makes
findings and conclusions of law based on the record. See Western Elec. Co.
v. Piezo Tech., Inc. v. Quigg, 860 F.2d 428,431 (Fed. Cir. 1988) (citing
Compagnie de St. Gobain v. Brenner, 386 F.2d 985, 987 (D.C. Cir. 1967)).
Only a party "admits" a fact. The only party in this case is Appellants.
The Examiner "admitted" nothing. All the Examiner did was make a
finding of fact with respect to a difference. The Examiner's Final Action
explicitly states:
Sankaranarayan teaches filtering the events of the single
task to include only events scheduled to occur in the present or
in the future while excluding events already having occurred in
the past ( see Paragraph 0349-03 51-- Sankaranarayan teaches this
limitation in that the resource providers have no concept of time
and therefore it is possible to evaluate possible configurations
that may be requested in the future. The scheduler may run "what
if' scenarios regarding whether resources will be available now
or in the future.).
Final Act. 7.
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Application 13/016,355
B.
Although Appellants fail in their attempt to elevate the Examiner's
finding into some form of admission, we are still left with Appellants'
underlying appeal argument that the Examiner's finding fails because "the
language of Sankaranayaran prohibits the stateless resources from having a
consideration of time." Reply Br. 5 (emphasis added). Appellants
acknowledge that this argument was addressed in the Decision at page 5, but
argue that the Board improperly distinguished Sankaranarayan's teaching
from Appellants' argued prohibition on stateless resources having a
consideration of time. Req. Reh'g. 4.
Essentially, Appellants' rehearing request is premised on the belief the
Board has misapprehended the teachings of Sankaranarayan at paragraphs
349--351 cited by the Examiner at page 7 of the Final Action. We disagree
with Appellants.
As Appellants acknowledge (App. Br. 10), the Examiner cites to
paragraphs 349--351 of Sankaranarayan. Appellants then premise their
contention that "Sankaranayaran prohibits the stateless resources from
having a consideration of time" upon selected language in these paragraphs
which Appellants quote. We review paragraphs 349-351 of
Sankaranarayan. First, the initial sentence of paragraph 349 states:
In the resource management architecture 100 illustrated in FIG.
2, the resource providers 104 may have some idea to which
activity it is currently allocated, the quantity of the resource that
has been allocated, as well as the concept that it is being
allocated now.
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Appeal2018-007493
Application 13/016,355
Sankaranarayan ,r 349 ( emphasis added). Unlike the embodiment referenced
by the Examiner and Appellants, this embodiment of Sankaranarayan's
resource providers has a concept of time (e.g., "now").
Second, the remaining sentences of paragraph 349 state:
However, this need not be the case. Instead, the resource
providers may be configured without any knowledge of the
owning application or allocated resource quantities. This
information is maintained by the resource manager 102 on
behalf of the resource providers 104. In this configuration, the
resource providers are said to be "stateless[."] One reason the
use of stateless resource providers is beneficial is that it allows
the architecture to evaluate possible configurations that may be
requested in the future.
Sankaranarayan ,r 349 ( emphasis added).
Third, paragraph 350 states:
FIG. 21 shows a resource management architecture 2100 that
differs from the architecture of FIG. 2 in that the resource
providers 2102(1), 2102(2), ... , 2102(P) are stateless. The
stateless resource providers are configured with no concept of
time and hence, have no idea whether they are being requested
now or in the future. The resource providers 2102 are only
concerned with what resources and how much of them are being
used at any given request and this information is supplied to
them by the resource manager.
Sankaranarayan ,r 350 (emphasis added). Although Appellants point to the
paragraph 350 language "[t]he stateless resource providers are configured
with no concept of time," Appellants overlook that paragraph 350 also states
"this information is supplied to them by the resource manager."
Fourth, the initial three sentences of paragraph 351 state:
The architecture 2100 also includes a scheduler 2104 to schedule
allocation of a set of the resources at a later time. The scheduler
2104 includes a calendar to track the time of day and date. The
scheduler 2104 is configured to run "what if' scenarios to
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Application 13/016,355
determine whether resources controlled by the stateless resource
providers 2102 will be available at selected times.
Sankaranarayan ,r 351 (emphasis added). The available times of the
resource providers is determined by the scheduler.
Fifth, the remaining sentences of paragraph 351 state:
For example, suppose the scheduler 2104 mocks up one or more
configurations of resources that are representative of system
usage at a prime time, such as 8: 00 PM. The scheduler 2104 then
asks the resource providers 2102 whether they could allocate
resources to these configurations. Since the providers have no
concept of time and the state data on which they have to base
their decisions is handed to them by the resource manager, they
simply indicate whether they could meet such a collection of
configurations.
Sankaranarayan ,r 351 (emphasis added). Again, although Appellants point
to the paragraph 350 language "[t]he stateless resource providers are
configured with no concept of time," Appellants overlook that paragraph
351 also states "[s]ince the providers have no concept of time and the state
data on which they have to base their decisions is handed to them by the
resource manager." That is, the stateless resource providers operated based
on state data (time data) provided to them by the resource manager.
Based on our above understanding of Sankaranarayan's paragraphs
349--351, we again are not persuaded by Appellants' contention that "the
stateless resource providers are prohibited from having a consideration of
time." Req. Reh'g. 4; Reply Br. 5 (emphasis added). Even if Appellants
were correct that the stateless resource providers are prohibited from
considering time, that still wouldn't matter because other parts of
Sankaranarayan expressly consider time on behalf of the stateless resource
providers.
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Appeal2018-007493
Application 13/016,355
DECISION
In view of the foregoing discussion, we grant Appellants' Request for
Rehearing to the extent of reconsidering our decision, but we otherwise deny
Appellants' request.
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).
REQUEST FOR REHEARING DENIED
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