Ex Parte Muras et al

Board of Patent Appeals and Interferences

May 22, 2012

10911849 (B.P.A.I. May. 22, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte BRIAN ROBERT MURAS
and JOHN MATTHEW SANTOSUOSSO
____________________

Appeal 2009-012987
Application 10/911,849
Technology Center 2100
____________________

Before KRISTEN L. DROESCH, GREGORY J. GONSALVES, and
KALYAN K. DESHPANDE, Administrative Patent Judges.

DESHPANDE, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE1
The Appellants seek review under 35 U.S.C. § 134(a) of a final
rejection of claims 1 and 3-22, the only claims pending in the application on
appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

The Appellants invented a method and system for database query
optimizers. Specification 1:4-5.
An understanding of the invention can be derived from a reading of
exemplary claims 1 and 19, which are reproduced below [bracketed matter
and some paragraphing added]:
1. A method for generating an access plan, the method
comprising the steps of:
[1] maintaining in non-volatile memory a respective set of
past performance statistics for each of a plurality of previously
executed database queries, wherein the sets of past performance
statistics are associated with respective database queries;
[2] in response to receiving a current database query,
identifying a particular set of past performance statistics from
among the sets of past performance statistics for the plurality of
previously executed database queries that relates to the current
database query; and
[3] generating and storing an access plan for the current
database query based at least in part on the particular set of past
performance statistics identified in response to receiving the
current database query.

1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed Dec. 8, 2008) and the Examiner’s Answer (“Ans.,” mailed Mar.
23, 2009).
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19. A method for generating an access plan, the method
comprising the steps of:
[1] maintaining in non-volatile memory a respective set of past
performance statistics for each of a plurality of previously executed
database queries;
[2] identifying a set of host variables referenced within those
respective sets of past performance statistics that relate to data skew
performance degradation; and
[3] forcing re-optimization to generate and store a new access plan
for a current SQL statement if the current database query includes one
or more host variables within the identified set of host variables.

REFERENCES
The Examiner relies on the following prior art:
Ellis US 6,360,214 B1 Mar. 19, 2002
Ziauddin US 2005/0177557 A1 Aug. 11, 2005

REJECTIONS
Claims 1, 3-13, 16, and 18-21 stand rejected under 35 U.S.C. §102(b)
as being anticipated by Ellis.
Claims 14-15 and 17 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Ellis and Ziauddin.
Claim 22 stands rejected under 35 U.S.C. §103(a) as being
unpatentable over Ellis.

ISSUE
The issue of whether the Examiner erred in rejecting claims 1 and 3-
22 turns on whether Ellis describes “maintaining in non-volatile memory a
respective set of past performance statistics for each of a plurality of
previously executed database queries, wherein the sets of past performance
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statistics are associated with respective database queries,” as per claim 1,
and “identifying a set of host variables referenced within those respective
sets of past performance statistics that relate to data skew performance
degradation,” as per claim 19.

ANALYSIS
Claims 1, 3-13, 16, and 18-21 rejected under 35 U.S.C. §102(b) as being
anticipated by Ellis
The Appellants first contend that Ellis fails to describe “maintaining
in non-volatile memory a respective set of past performance statistics for
each of a plurality of previously executed database queries, wherein the sets
of past performance statistics are associated with respective database
queries,” as required by limitation [1] of claim 1. App. Br. 7-12. The
Appellants specifically argue that Ellis fails to describe the storage of
statistics associated with a particular database query. App. Br. 8-12.
We disagree with the Appellants. The Examiner found that the term
“performance statistics” encompasses file size, memory size, processor
speed, number of processors available, the SQL statement (with parameters),
and other items. Ans. 13 (citing Specification 15:5-10). Ellis describes a
database management system (DBMS), where statistics regarding data
stored in a database are automatically generated as needed during query
processing. Ellis 3:4-7. When a query is processed, the DBMS recognizes
that statistics have not been generated for some component of the data
accessed by an execution plan and automatically generates statistics. Ellis
3:7-14. The query optimization continues with selecting an executing plan
using the actual statistics. Ellis 3:7-14. An “execution plan” is a plan that
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implements the objectives of the SQL query. Ellis 1:31-35. The Examiner
further found that Ellis describes periodically updating stored execution
plans based on database statistics. Ans. 13 (citing Ellis 9:22-26). As such,
Ellis describes the storage of statistics associated with optimizing a database
query in non-volatile memory, as required by limitation [1] of claim 1.
The Appellants further contend that Ellis fail to describe “in response
to receiving a current database query, identifying a particular set of past
performance statistics from among the sets of past performance statistics for
the plurality of previously executed database queries that relates to the
current database query,” as required by limitation [2] of claim 1. App. Br. 9-
12. The Appellants specifically argue that Ellis fails to describe the use of
past performance statistics for previously executed database queries that
relate to a current database query. App. Br. 9. We disagree with the
Appellants. As discussed supra, Ellis describes processing a database query
by generating database statistics for the data accessed and selecting an
execution plan based on these statistics. Ellis 3:7-14. Ellis explicitly
describes that the DMBS searches for a previously identified execution plan
for an SQL query that is applied to the database. Ellis 9:48-52. That is, Ellis
generates statistics for accessing a specific component of data for a database
query that is currently being applied.
The Appellants also contend that Ellis fails to describe “generating
and storing an access plan for the current database query based at least in
part on the particular set of past performance statistics identified in response
to receiving the current database query,” as required by limitation [3] of
claim 1. App. Br. 9-12. The Appellants specifically argue that Ellis fails to
describe an access plan is generated or stored based upon past performance
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statistics generated for and associated with another database query. App. Br.
9. We disagree with the Appellants. As found by the Examiner, Ellis
describes periodically updating stored execution plans based on database
statistics. Ans. 13 (citing Ellis 9:22-26). When the performance statistics
have changed and the execution plan is no longer valid, a new execution
plan is generated using the new statistics. Ellis 9:44-47. As such, Ellis
describes generating and storing an access plan based on performance
statistics for accessing particular data.
The Appellants additionally contend that Ellis fails to describe
“analyzing performance of an access plan identified within the particular set
of past performance statistics,” as per claim 7. App. Br. 13-14. The
Appellants specifically argue that Ellis describes that statistics are associated
with tables and columns, not for particular database queries. App. Br. 14.
We disagree with the Appellants. As discussed supra, the Examiner found
that when the performance statistics have changed and the execution plan is
no longer valid, a new execution plan is generated using the new statistics.
Ans. 15 (citing Ellis 9:44-47). That is, the performance of an execution plan
is reevaluated based on new statistics and a new execution plan is generated
using the new statistics if the execution plan is invalid. As such, we find that
Ellis describes the disputed limitation. In response to the Appellants’
argument that statistics are associated with tables and columns and not for
database queries, we found that Ellis describes generating statistics for
queries in order to select an execution plan supra. Ellis 1:31-35 and 3:7-14.
As such, these arguments are not found to be persuasive.
The Appellants further contend that Ellis fails to describe “deciding
whether to re-use the current access plan for the current database query
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based on the analysis of the performance of the previously executed database
query,” as per claim 162. App. Br. 16. We disagree with the Appellants.
Ellis describes evaluating an execution plan and determining whether that
execution plan is valid based on new statistics. Ans. 15 (citing Ellis 9:44-
47). That is, the execution plan is evaluated to determine whether to re-use
that execution plan for a current query based on new statistics. As such, the
Appellants contention is not found to be persuasive.
The Appellants also contend that Ellis fails to describe “identifying
host variables in past performance statistics that relate to data skew
performance degradation, or forcing re-optimization if an identified host
variable is included within a current database query,” as per claim 19. App.
Br. 16-18. Here, we agree with the Appellants. Although the term “data
skew” is not specifically defined in the Specification, the Specification
provides examples of a “data skew” to include degradation of performance
due to serially processing a query opposed to the parallel processing of a
query because the number of devices that the data is spread across.
Specification 18:11-17. The database monitor is queried to identify which
host variables are involved in query plans that executed x times slower than
its run time. Specification 19:3-6. These host variables are identified as
host variables that involve data skew. Specification 19:6-7.
The Examiner does not direct us to evidence in Ellis that describes
identifying host variables in past performance statistics that relate to data
skew performance degradation. While Ellis describes the use of statistics to

2 The Appellants also contend that Ellis fails to describe several of the
limitations of claims 16 and 19 for the reasons argued in support of claims 1
and 7; however, those arguments are not found to be persuasive in support of
claims 16 and 19 for the same reasons discussed supra.
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generate an execution plan as discussed supra, Ellis is silent as to the
identification of host variables that relate to data skew. The Examiner found
that “the query step which is slowing down the execution plan is ‘a set of
host variables’” and “‘data skew’ is based on the location of records” where
“each record has to be located within groups of records.” Ans. 19.
However, the Examiner does not direct us to, and we cannot find anything in
Ellis that shows specific elements that “slow down the execution plan” and
as such there is not monitoring or identifying of host variables that “slow
down the execution plan.”
Since Ellis does not describe “identifying host variables in past
performance statistics that relate to data skew performance degradation, or
forcing re-optimization if an identified host variable is included within a
current database query,” Ellis does not anticipate claim 19. Claims 20-21
incorporate the same subject matter as claim 19 and therefore we do not
sustain the rejections against these claims for the same reasons. Since this
issue is dispositive as to the rejections against these claims, we need not
reach the remaining arguments presented by the Appellants in support of
these claims.
The Appellants additionally contend that Ellis fails to describe the
limitations of claims 3-5, 8-13, and 183. App. Br. 19-22. We find that the
Examiner has fully responded to these arguments. Ans. 20-23. We agree
with the Examiner and accordingly adopt the findings and conclusions set
forth by the Examiner. Ans. 5-8 and 20-23. We note that with respect to
claims 3, 4, 5, 11, and 18, the Appellants have failed to provide an argument.
See 37 C.F.R. § 41.37(c)(1)(vii) (“A statement which merely points out what

3 Claims 6 and 10 are not argued separately. App. Br. 20-21
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a claim recites will not be considered an argument for separate patentability
of the claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e
hold that the Board reasonably interpreted Rule 41.37 to require more
substantive arguments in an appeal brief than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art.”).

Claims 14-15 and 17 rejected under 35 U.S.C. §103(a) as being
unpatentable over Ellis and Ziauddin
We have reviewed the Examiner’s rejections in light of the
Appellants’ contentions that the Examiner has erred.
We disagree with the Appellants’ conclusions. We adopt as our own
(1) the findings and reasons set forth by the Examiner in the action from
which this appeal is taken and (2) the reasons set forth by the Examiner in
the Examiner’s Answer in response to the Appellants’ Appeal Brief. We
concur with the conclusion reached by the Examiner.

Claim 22 rejected under 35 U.S.C. §103(a) as being unpatentable over Ellis
Claim 22 incorporates the same subject matter as claim 19 and
therefore we do not sustain the rejection against this claim for the same
reasons. Since this issue is dispositive as to the rejections against this claim,
we need not reach the remaining arguments presented by the Appellants in
support of this claim.

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CONCLUSIONS OF LAW
The Examiner did not err in rejecting claims 1, 3-13, 16, and 18 under 35
U.S.C. § 102(b) as being anticipated by Ellis.
The Examiner erred in rejecting claims 19-21 under 35 U.S.C. § 102(b)
as being anticipated by Ellis.
The Examiner did not err in rejecting claims 14-15 and 17 under 35
U.S.C. § 103(a) as unpatentable over Ellis and Ziauddin.
The Examiner erred in rejecting claim 22 under 35 U.S.C. § 103(a) as
unpatentable over Ellis.

DECISION
To summarize, our decision is as follows.
 The rejection of claims 1, 3-13, 16, and 18 under 35 U.S.C. § 102(b)
as being anticipated by Ellis is sustained.
 The rejection of claims 19-21 under 35 U.S.C. § 102(b) as being
anticipated by Ellis is not sustained.
 The rejection of claims 14-15 and 17 under 35 U.S.C. § 103(a) as
unpatentable over Ellis and Ziauddin is sustained.
 The rejection of claim 22 under 35 U.S.C. § 103(a) as unpatentable
over Ellis is not sustained.

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) (2010).

AFFIRMED-IN-PART

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