Ex Parte Steiner

Patent Trial and Appeal Board

Aug 17, 2017

13910881 (P.T.A.B. Aug. 17, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/910,881 06/05/2013 Robert C. Steiner 4366-620 4759
48500 7590
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
HOANG, HAU HAI
ART UNIT PAPER NUMBER
2167
NOTIFICATION DATE DELIVERY MODE
08/21/2017 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):
cjacquet@ sheridanross.com
pair_Avay a @ firsttofile. com
edocket @ sheridanross .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT C. STEINER
Appeal 2017-002606
Application 13/910,881
Technology Center 2100
Before JOHN A. JEFFERY, BRUCE R. WINSOR, and
JUSTIN BUSCH, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
STATEMENT OF THE CASE
Appellant’s invention is a contact center that transmits snapshots of a
work assignment engine to another server as backup. See generally
Abstract; Spec. 4—5. Claim 1 is illustrative:
1. A method, comprising:
obtaining a snapshot, by a microprocessor executing a work
assignment engine in a contact center, the snapshot being obtained
during operations of the contact center;
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Application 13/910,881
compressing, by the microprocessor using a compression codec,
the snapshot or a portion thereof into a compressed snapshot of the
work assignment engine;
packetizing, by the microprocessor, the compressed snapshot to
create a packetized snapshot; and
transmitting, by the microprocessor, the packetized snapshot to
a remote server over an IP-based communications network.
THE REJECTIONS1
The Examiner rejected claims 4, 6, 11, 12, and 15—17 under 35 U.S.C.
§ 112(a) as failing to comply with the written description requirement. Final
Act. 2, 3, 7-15.2’3
The Examiner rejected claims 1,5,6, 9—11, 15, 18, and 20 under
35 U.S.C. § 103(a) as unpatentable over Peterson (US 2011/0179304 Al;
1 On the record before us, we presume that the Examiner withdrew the
rejection of claims 8 and 14 under 35 U.S.C. § 112(b) (Final Act. 15—16). In
the Grounds of Rejection section on page 2 of the Examiner’s Answer, the
Examiner does not indicate that any claims are rejected under § 112(b), yet
indicates clearly and unambiguously that various claims are rejected under
§§ 112(a) and 103. Nor does the Response to Argument section of the
Examiner’s Answer refer to a rejection under § 112(b). See Ans. 3—138.
Accordingly, based on the record before us, we presume that the § 112(b)
rejection is withdrawn and, therefore, not before us.
2 Throughout this opinion, we refer to (1) the Specification filed June 5,
2013; (2) the Final Rejection mailed February 5, 2016 (“Final Act.”); (3) the
Advisory Action mailed April 28, 2016; (4) the Appeal Brief filed July 5,
2016 (“App. Br.”); (5) the Examiner’s Answer mailed October 4, 2016
(“Ans.”); and (6) the Reply Brief filed December 5, 2016 (“Reply Br.”).
3 The Examiner withdrew the rejection of claims 1, 3, 5, 7, 19, and 20 under
35 U.S.C. § 112(a). Adv. Act. 3. Accord Ans. 2 (omitting these claims from
the § 112(a) rejection in the Grounds of Rejection section). Notably, claims
19 and 20 are omitted from the written description rejection despite their
dependence from claim 15 that remains so rejected. Although dependent
claims 19 and 20 contain the same identified deficiencies as the claims from
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July 21, 2011) and Mukherjee et al. (US 8,156,241 Bl; Apr. 10, 2012).
Final Act. 16—31.
The Examiner rejected claims 2 and 3 under 35 U.S.C. § 103(a) as
unpatentable over Peterson, Mukherjee, Vick et al. (US 2006/0294435 Al;
Dec. 28, 2006), and Jeong et al. (US 2013/0179730 Al; July 11, 2013).
Final Act. 31—35.* * * 4
The Examiner rejected claim 4 under 35 U.S.C. § 103(a) as
unpatentable over Peterson, Mukherjee, Vick, Jeong, and Rosalia
Christodoulopoulou et al., Fast and Transparent Recovery for Continuous
Availability of Cluster-based Servers, Proc. 11th ACM SIGPLAN Symp. on
Principles and Practice of Parallel Programming, Mar. 2006, at 221—29.
Final Act. 35—36.
The Examiner rejected claims 7 and 13 under 35 U.S.C. § 103(a) as
unpatentable over Peterson, Mukherjee, and Vick. Final Act. 37-42.
The Examiner rejected claims 8 and 14 under 35 U.S.C. § 103(a) as
unpatentable over Peterson, Mukherjee, Vick, and Aguilar, Jr. et al. (US
2005/0071814 Al; Mar. 31, 2005). Final Act. 42-44.
The Examiner rejected claim 12 under 35 U.S.C. § 103(a) as
unpatentable over Peterson, Mukherjee, and Kambhammettu et al. (US
2003/0005109 Al; Jan. 2, 2003). Final Act. 4A45.
which they depend, see 35 U.S.C. § 112(d), our decision is nevertheless
based solely on the claims so rejected, namely claims 4, 6, 11, 12, and 15—
17.
4 Claim 3 is mistakenly omitted from the header for this rejection, but
otherwise appears in the body of the rejection. Final Act. 34—35. We deem
the Examiner’s typographical error to be harmless.
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The Examiner rejected claim 16 under 35 U.S.C. § 103(a) as
unpatentable over Peterson, Mukherjee, Vick, and Christodoulopoulou.
Final Act. 45 46.
The Examiner rejected claim 17 under 35 U.S.C. § 103(a) as
unpatentable over Peterson, Mukherjee, Vick, Christodoulopoulou, and
Yeager (US 6,418,542 Bl; July 9, 2002). Final Act. 46-48.
The Examiner rejected claim 19 under 35 U.S.C. § 103(a) as
unpatentable over Peterson, Mukherjee, Vick, and Kern et al. (US
2004/0260899 Al; Dec. 23, 2004). Final Act. 48-49.
THE WRITTEN DESCRIPTION REJECTION
Regarding independent claim 15, the Examiner finds that Appellant’s
Specification does not support the recited high availability module’s
snapshot process that obtains a snapshot of a work assignment engine’s first
instance. Final Act. 12—13; Ans. 41—52. The Examiner adds that the
limitations of dependent claims 4, 6, 11, 12, 16, and 17 are also unsupported
by Appellant’s Specification. Final Act. 7—14; Ans. 3—40, 53—75.
Appellant argues that the subject matter of claims 4, 6, 11, 12, and
15—17 is supported by the disclosure at various cited passages. App. Br. 8—
14; Reply Br. 2—10.
ISSUE
Under § 112(a), has the Examiner erred in rejecting claims 4, 6, 11,
12, and 15—17 by finding that the recited subject matter fails to comply with
the written description requirement? This issue turns on whether
Appellant’s original disclosure conveys with reasonable clarity to ordinarily
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skilled artisans that Appellant possessed the invention recited in claims 4, 6,
11, 12, and 15—17 as of the filing date.
ANALYSIS
We begin by noting that Appellant’s and the Examiner’s citations in
connection with the written description rejection are to the version of the
Specification published as US 2014/0365440 A1 (“the ’440 published
application”). But this appeal turns on whether Appellant’s original
disclosure satisfies the written description requirement under § 112(a). We
emphasize “original disclosure,” for it is this disclosure—namely, the
disclosure filed on June 5, 2013—that is critical to determining whether
Appellant possessed the subject matter of the claimed invention as of that
date. See AriadPharms., Inc. v. EliLilly & Co., 598 F.3d 1336, 1351 (Fed.
Cir. 2010) (en banc). Contrary to Appellant’s assertion that the original
disclosure is cited (see App. Br. 2—5), our references to the “original
disclosure” refer to the June 5, 2013 disclosure—not to the ’440 published
application cited by Appellant and the Examiner.
Claim 4
It is well settled that to satisfy the written description requirement, the
disclosure must reasonably convey to ordinarily skilled artisans that
Appellant possessed the claimed invention as of the filing date. Ariad, 598
F.3d at 1351.
We do not sustain the Examiner’s written description rejection of
claim 4 (Final Act. 7). Claim 4 depends from claim 3, which depends from
claim 2, which recites a snapshot of a work assignment engine comprising
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(1) instructions for executing the work assignment engine at a first instance
of time; and (2) a thread, variables, and a contact each contained within the
work assignment engine at the first instance in time. Claim 4 recites that a
new thread, new variables, and a new context are created based on the first
instance of time.
Here, the support for the recited new thread, variables, and context is
found in the disclosure directed to new thread creation. See Spec. 62, 64
(cited in App. Br. 9 as 66, 68 of the ’440 published application). In
particular, upon a determination that a thread has failed, the failed thread’s
context is provided to the new thread. Spec. Tflf 62, 64. Further, a thread’s
context includes values of the thread’s variables. Id. 140.
Likewise, the new thread, variables, and context are further based on
the first instance of time at which the work assignment engine is executed by
instructions. See Spec. 62, 64. On this record, then, we agree with
Appellant (see App. Br. 9; Reply Br. 2) that the Specification reasonably
conveys that Appellant possessed the subject matter recited in claim 4.
See Spec. 40, 62, 64.
Accordingly, we are persuaded that the Examiner erred in rejecting
claim 4.
Claim 6
We do not sustain the Examiner’s written description rejection of
claim 6 (Final Act. 8—9). Claim 6 depends from claim 1 and recites (1)
obtaining a secondary snapshot; (2) calculating a delta (as being the
difference between the original snapshot and the secondary snapshot that is
less than an entire amount of data from the secondary snapshot); and
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(3) transmitting the delta to a backup server with a reference to the original
snapshot.
Here, the support for the recited limitations of claim 6 is found in the
disclosure that discusses deltas. See Spec. 1 50 (cited in App. Br. 9 as 1 54
of the ’440 published application). In particular, paragraph 50 of
Appellant’s Specification describes (1) determining a marked key snapshot;
(2) obtaining a subsequent snapshot, (3) calculating a change (or delta) in the
subsequent snapshot as compared to the marked key snapshot, and (4)
transmitting the delta along with a reference to the key snapshot, thereby
sending less than all of the entire subsequent snapshot. Thus, when
considered as a whole, we agree with Appellant (see App. Br. 9—10; Reply
Br. 2—3) that the originally-filed disclosure reasonably conveys to ordinarily
skilled artisans the recited subject matter of claim 6. See Spec. 1 50.
We are, therefore, persuaded the Examiner erred in rejecting claim 6.
Claim 11
We sustain the Examiner’s written description rejection of claim 11
(Final Act. 10—11) which recites, in pertinent part, compressing the delta and
packetizing the compressed delta.
Although Appellant refers to Figure 2 and paragraphs from the
Specification describing the acts of compressing and packetizing (see Spec.
1145, 54, and 55, cited in App. Br. 9 as H 49, 58, and 59 of the ’440
published application), the recited Figure and paragraphs describe
compressing and packetizing a snapshot. However, Appellant has not
identified—nor can we find—anywhere in the originally-filed disclosure that
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indicates compressing and packetizing a delta, let alone transmitting this
compressed and packetized delta as claimed.
Although the written description requirement under § 112 does not
demand any particular form of disclosure or require a verbatim recitation, a
description that merely renders the invention obvious does not satisfy the
requirement. Ariad, 598 F.3d at 1352. That is the case here. At best, the
Specification describes compressing, packetizing, and transmitting a
snapshot. Nevertheless, even assuming, without deciding, that compressing
and packetizing a delta would have been obvious from Appellant’s
originally-filed disclosure, that too is insufficient to satisfy the written
description requirement. See id.
Notably, Appellant’s originally-filed claims did not recite
compressing and packetizing a delta as recited in claim 11. See present
Appl’n 13/910,881, filed June 5, 2013. Appellant added that limitation in an
amendment filed after the present application’s filing date (see present
Appl’n 13/910,881, Amd’t filed Dec. 23, 2015, at 5). Although amended
claims can be supported by an original disclosure, that is not the case here, at
least with respect to the compressed and packetized delta now recited in
claim 11. On this record, we fail to see how the cited passages that are said
to support compressing and packetizing a delta in claim 11 reasonably
convey to ordinarily skilled artisans that Appellant possessed that particular
subject matter when the application was filed.
Accordingly, on this record, we agree with the Examiner (Final Act.
10-11; Ans. 29—38) that Appellant’s disclosure does not reasonably convey
to ordinarily skilled artisans that Appellant possessed, as of the filing date,
the subject matter recited in claim 11.
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We are, therefore, not persuaded that the Examiner erred in rejecting
claim 11 under § 112.
Claim 12
Claim 12 depends from claim 11—the written description rejection of
which we sustain, as noted previously. Because Appellant has not identified
(see App. Br. 10-11; Reply Br. 3—5)—nor can we find—anywhere in the
originally-filed disclosure that indicates compressing and packetizing a delta
as claimed, we likewise sustain the Examiner’s rejection of claim 12 (Final
Act. 11—12) for reasons similar to those indicated for claim 11. And even
assuming, without deciding, that the recited subject matter would have been
obvious from Appellant’s original disclosure, that alone is insufficient under
Ariad as noted previously. SeeAriad, 598 F.3d at 1352.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 12 under § 112.
Claim 15
We do not sustain the Examiner’s written description rejection of
claim 15 (Final Act. 12—13) which recites, in pertinent part, a high
availability module comprising a snapshot process that obtains a snapshot of
a first instance of a work assignment engine at a first point in time.
At the outset, we note Appellant’s originally-filed claim 15 recites the
same claim limitation recited above. Compare present Appl’n 13/910881,
claim 15 filed June 5, 2013, at 22 with claim 15; App. Br. 40. Original
claims are part of the Specification, and, in many cases, will satisfy the
written description requirement. Crown Packaging Tech., Inc. v. Ball Metal
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Beverage Container Corp., 635 F.3d 1373, 1380 (Fed. Cir. 2011) (citing
Ariad, 598 F.3d at 1349). That is the case here. Because the original claim
15 includes the language the Examiner finds lacking sufficient written
description support (see Final Act. 12), we agree with Appellant (see App.
Br. 11—12; Reply Br. 6—8) that the original disclosure provides sufficient
written description support for claim 15.
Therefore, we are persuaded that the Examiner’s written description
rejection of claim 15 under § 112 is erroneous.
Claim 16
We sustain the Examiner’s written description rejection of claim 16
(Final Act. 13) which recites detecting a thread having an interrupted
context. Despite Appellant’s arguments to the contrary (see App. Br. 12—13;
Reply Br. 8—9), Appellant’s original disclosure does not support detecting a
thread having an interrupted context. Although Appellant’s recited
paragraphs of the Specification encompass detecting a failed thread,
Appellant has not identified—nor can we find—anywhere in the originally-
filed disclosure that indicates detecting a thread with an interrupted context
as claimed. Even assuming, without deciding, that an interrupted context
would have been obvious from the disclosed failed thread detection, that
alone is insufficient to satisfy the written description requirement. See
Ariad, 598 F.3d at 1352. Accordingly, we fail to see how the cited passages
reasonably convey to ordinarily skilled artisans that Appellant possessed the
particular subject matter of claim 16 when the application was filed.
We are, therefore, not persuaded that the Examiner erred in rejecting
claim 16 under § 112.
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Claim 17
Claim 17 depends from claim 16—the written description rejection of
which we sustain, as noted previously. Because Appellant has not identified
(see App. Br. 12—14; Reply Br. 8—10)—nor can we find—anywhere in the
originally-filed disclosure that indicates detecting a thread having an
interrupted context as claimed, we sustain the Examiner’s rejection of claim
17 (Final Act. 13—14) for reasons similar to those indicated for claim 16.
And even assuming, without deciding, that the recited subject matter would
have been obvious from Appellant’s original disclosure, that alone is
insufficient under Ariad as noted previously. SeeAriad, 598 F.3d at 1352.
We are, therefore, not persuaded that the Examiner erred in rejecting
claim 17 under § 112.
THE OBVIOUSNESS REJECTION OVER PETERSON AND
MUKHERJEE
Regarding claim 1, the Examiner finds that Peterson (1) executes a
work assignment engine in a contact center; and (2) obtains a snapshot
during operations of the contact center. Final Act. 16—17. Although the
Examiner acknowledges that Peterson does not compress, packetize, and
transmit the snapshot to a remote server, the Examiner cites Mukherjee for
teaching these respective elements in concluding that the claim would have
been obvious. Final Act. 17—19.
Appellant argues, among other things, that Peterson is silent regarding
a work assignment engine. App. Br. 14—15. According to Appellant,
Peterson’s snapshots are obtained at predetermined checkpoints at the
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beginning or end of a script—not during operations of a contact center. Id.
Appellant adds that not only does Mukherjee fail to obtain a snapshot that is
compressed and packetized as claimed, the prior art fails to show a single
processor performing the recited functions. Id. at 16—17; Reply Br. 15—16.
Regarding claim 15, the Examiner finds that Peterson discloses first
and second computing environments (the claimed first and second servers).
Final Act. 27—28. The Examiner further finds Peterson’s first computing
environment includes a snapshot module that obtains a snapshot of the work
assignment engine’s first instance. Id. at 28. According to the Examiner,
Peterson’s snapshot module further comprises a system-to-system codec that
transmits the snapshot to the second computing environment because,
according to OSI model, before data is placed on an IP network, the data is
fragmented into small data blocks. Id. at 29.
Appellant argues Peterson’s first and second computing environments
are not the first and second servers recited in claim 15. App. Br. 18.
Appellant further argues even assuming that either of Peterson’s computing
environment comprises a system-to-system codec, Peterson is silent
regarding any high availability module that (1) is executed by a second
server, (2) is in communication with a first server, and (3) comprises a
snapshot process and the system-to-system codec, as claimed. Reply Br. 18.
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ISSUES
Under § 103, has the Examiner erred by finding that Peterson and
Mukherjee collectively would have taught or suggested:
(1) a work assignment engine in a contact center and a snapshot
obtained during operations of the contact center recited in claim 1?
(2) compressing and packetizing the snapshot recited in claim 1?
(3) the microprocessor recited in claim 1?
(4) the first and second servers recited in claim 15, where the first
server has a microprocessor?
(5) a high availability module that (a) the second server executes; (b)
communicates with the first server; and (c) comprises a snapshot process and
a system-to-system codec?
ANALYSIS
Claims 1, 5, 6, and 9—11
We begin by construing a disputed limitation of claim 1 which recites,
in pertinent part, a “work assignment engine.” The term is not defined in
Appellant’s Specification to so limit its interpretation. To be sure, the
Specification describes that a work assignment engine may comprise a
thread, which is further described in the Specification as the smallest
sequence of programmed instructions that can be managed independently by
an operating system scheduler. Spec. | 8. Although this description informs
our understanding of the recited work assignment engine, it does not limit
our interpretation. As known in the art, the term “engine” is defined as “[a]
processor or portion of a program that determines how the program manages
and manipulates data.” Microsoft Computer Dictionary 193 (5th ed.
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2002). Therefore, under its broadest reasonable interpretation, a work
assignment engine encompasses a program portion that determines how the
program manages and manipulates data relating to a work assignment.
With this construction, we see no error in the Examiner’s finding that
Peterson’s script execution engine corresponds to a work assignment engine.
See Ans. 82 (citing Peterson 132). Peterson is directed to transmitting
scripts to computing resources for performing various actions. Peterson,
Abstract. According to Peterson, a script execution engine runs the scripts
to perform the actions. Id. 132. Because Peterson’s script execution engine
runs scripts to perform various assigned actions, in that sense, then, Peterson
at least suggests a work assignment engine. As such, the Examiner’s finding
in this regard has at least a rational basis that has not been persuasively
rebutted. On this record, then, the weight of the evidence favors the
Examiner’s position. See Ans. 82. Therefore, we see no error in the
Examiner’s broad, but reasonable, construction of “work assignment engine”
in light of the Specification.
We also see no error in the Examiner’s finding that Peterson’s
snapshots are obtained during operations of a contact center. See Final
Act. 16—17; Ans. 82—85. The Examiner finds that because Peterson’s script
execution engine obtains snapshots in real-time, the snapshots are obtained
during the script execution engine’s operation. Ans. 82—83 (citing Peterson
132). We agree. Because Peterson’s operations are run in real-time and one
particular operation is obtaining snapshots, in that sense, then, Peterson at
least suggests obtaining snapshots during operations of a contact center.
Therefore, the Examiner’s finding in this regard has at least a rational basis
that has not been persuasively rebutted. Moreover, Appellant’s contention
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that Peterson’s snapshots, which are obtained at predetermined checkpoints,
and not during a contact center’s operations (see App. Br. 15), is unavailing
and not commensurate with the scope of the claim that does not preclude
obtaining snapshots at predetermined checkpoints. Appellant’s argument
that Mukherjee is not directed to compressing and packetizing an obtained
snapshot (see App. Br. 16; Reply Br. 14—15) is not germane to the
Examiner’s findings, which are not based on Mukherjee alone, but rather
Peterson and Mukherjee collectively.
Appellant’s argument that a person of ordinary skill in the art would
allegedly think that the combination of Peterson and Mukherjee involves
several microprocessors performing the various different functions of claim
1 is unavailing. See App. Br. 16—17; Reply Br. 15—16. First, Appellant’s
multiple-processor theory is unsubstantiated by persuasive evidence on this
record. Such lawyer argument and conclusory statements that are
unsupported by factual evidence are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). See also Enzo Biochem, Inc.
v. Gen-Probe, Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) (“Attorney
argument is no substitute for evidence.”). And even assuming, without
deciding, that there are multiple processors in the Peterson/Mukherjee
system as Appellant contends (an assertion that is unsubstantiated),
Appellant has not shown persuasively that using a single processor in lieu of
multiple processors to perform the recited functions would have been
beyond the skill level of ordinarily skilled artisans.
Fastly, Appellant’s argument is not germane to the Examiner’s
reliance on Peterson’s microprocessor that obtains a snapshot (see Final Act.
16—17) and Mukherjee’s functions involving compressing, segmenting, and
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transferring (see id. at 19). These collective teachings, then, at least suggest
a microprocessor that compresses, segments, and transfers.
Accordingly, we sustain the Examiner’s rejection of claim 1, and
claims 5, 6, and 9—11, not argued separately with particularity. See App.
Br. 14—18, 36; Reply Br. 10-16, 29.
Claims 15, 18, and 20
We sustain the Examiner’s obviousness rejection of independent
claim 15. Final Act. 27—30. We find Appellant’s contention (see App. Br.
18) regarding Peterson’s alleged shortcomings pertaining to first and second
servers unavailing. Appellant does not persuasively rebut the Examiner’s
reliance on Peterson’s first and second computing environments as teaching
or suggesting the first and second servers. See Final Act. 27—28; Ans. 97.
Peterson’s first and second computing environments, as noted by the
Examiner (see Ans. 97), include executable applications running on multi­
processor servers. Peterson 131. As such, the Examiner’s finding in this
regard has at least a rational basis that has not been persuasively rebutted.
Nor does Appellant persuasively rebut (see App. Br. 18; Reply Br. 16—18)
the Examiner’s reliance on the functionality associated with Peterson’s first
and second computing environments to perform the functions recited in
independent claim 15 associated with the first and second servers (see Final
Act. 27—30). At the outset, we note merely reciting the functional language
of independent claim 15 and asserting Peterson’s first and second computing
environments do not perform the recited functional language (see App. Br.
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18) is itself insufficient to show error in the Examiner’s findings. See 37
C.F.R. § 41.37(c)(l)(iv) (2012).
Nor do we see error in the Examiner’s finding (see Final Act. 29) that
each of Peterson’s first and second computing environments comprises a
first instance of a work assignment engine. As noted above, we see no error
in the Examiner’s finding that Peterson’s script execution engine
corresponds to a “work assignment engine,” as claimed. See Ans. 82 (citing
Peterson 132). Appellant does not persuasively rebut the Examiner’s
reliance on each of Peterson’s computing environments including a script
execution engine, and therefore each of Peterson’s computing environments
is equivalent to a work assignment engine. See Final Act. 29. As such, the
Examiner’s finding that each of Peterson’s computing environments
comprises a first instance of a work assignment engine because each
computing environment is the work assignment engine, has not been
persuasively rebutted. As such, the Examiner’s finding in this regard has at
least a rational basis that has not been persuasively rebutted.
The Examiner maps the recited “high availability module” to
Peterson’s snapshot module in each computing environment. See Final
Act. 28—30; Ans. 100-01; see also Peterson Fig. 11. We see no error in this
finding, particularly since a “module” is defined in the Specification as a
“hardware, software, firmware, artificial intelligence, fuzzy logic, or
combination of hardware and software that is capable of performing the
functionality associated with that element.” Spec. 116.
Nor do we find error in the Examiner’s finding (see Final Act. 28—29)
that Peterson’s snapshot module (the claimed “high availability module”), in
each computing environment, comprises a snapshot process that obtains a
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snapshot of the work assignment engine’s first instance at a first point in
time, as claimed. Peterson’s snapshot module obtains a snapshot of the state
of the computing environment in which it resides. See Peterson 1114; Fig.
10. As discussed above, Appellant does not persuasively rebut the
Examiner’s finding that each of Peterson’s computing environments is
equivalent to the work assignment engine, as claimed. Therefore, we see no
error in the Examiner’s findings at least to the extent that Peterson’s
snapshot modules obtain a snapshot of the state of each computing
environment (the claimed “work assignment engine”) in which each module
resides, as claimed.
Nor do we find error in the Examiner’s uncontested finding (see Final
Act. 28—29; Ans. 100-01) that because Peterson’s obtained snapshot (by
each snapshot module) would be fragmented into small data blocks before
the snapshot is placed on an IP5 network for transmission to the other
computing environment via an IP protocol, Peterson’s computing
environments each include a “system-to-system codec,” as claimed.
Notably, the term “system-to-system codec” is not defined in Appellant’s
Specification. Rather, the Specification describes that a system-to-system
codec is capable of breaking up a snapshot into frames from sending via
TCP/IP6. Spec. | 6. Although this description informs our understanding of
the recited codec, it is not limiting. We, therefore, interpret the recited term
with its plain meaning of “codec,” namely a “compressor/decompressor.
5 Internet Protocol. Microsoft Computer Dictionary 287 (5th ed. 2002).
6 Transmission Control Protocol/Intemet Protocol. Microsoft Computer
Dictionary 513 (5th ed. 2002).
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Hardware or software that can compress and uncompress audio or video
data.” Microsoft Computer Dictionary 106 (def. 2) (5th ed. 2002).
Appellant does not dispute the existence of a system-to-system codec
in each of Peterson’s computing environments, but rather argues that
Peterson does not disclose a high availability module that comprises the
system-to-system codec, as claimed. See Reply Br. 17—18.
We disagree. Peterson’s Figure 11 is illustrative and reproduced
below:
1100—^
Fig. 11
Reproduction of Peterson’s Figure 11
Figure 11 of Peterson, relied upon by the Examiner (see Ans. 100),
illustrates a first computing environment (115a) including a snapshot module
(1120a) and transmitter/receiver (1140a). Peterson 1127. Peterson’s
snapshot module (1120a) prepares a snapshot (1125) of the state of the first
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computing environment (115a) at predetermined checkpoints. Id.
Peterson’s transmitter/receiver (1140) transmits the snapshot (1125) to the
second computing environment (115b). Id. As shown in Figure 11 of
Peterson, because Peterson’s transmitter/receiver (1140a) transmits the
snapshot module (1120a)’s snapshot to the second computing environment
(115b), in that sense, then, Peterson’s snapshot module (1120a) and
transmitter/receiver (1140a) collectively at least suggest the high availability
module, as claimed. In other words, Peterson’s snapshot module (1120a)
and transmitter/receiver (1140a) collectively at least suggest a high
availability module that (1) is executed by the first computing environment
(115a); (2) communicates with the second computing environment (115b);
(3) comprises a snapshot process that obtains a snapshot of the work
assignment engine’s first instance at a first point in time; and (4) comprises a
system-to-system codec that transmits the snapshot to the server-based
second computing environments (115b).
Lastly, although Appellant does not dispute the Examiner’s finding
(see Ans. 99) that Peterson’s server implicitly comprises a microprocessor as
discussed above, Appellant’s argument that Peterson’s implicit
microprocessor does not teach or suggest the high availability module (see
Reply Br. 17—18) is unavailing for the reasons discussed above and by the
Examiner.
Accordingly, we sustain the Examiner’s rejection of claim 15, and
claims 18 and 20 not argued separately with particularity. See App. Br. 14—
18, 36; Reply Br. 10-16, 29.
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THE OBVIOUSNESS REJECTION OVER PETERSON, MUKHERJEE,
VICK, AND JEONG
Claim 2
We sustain the Examiner’s obviousness rejection of claim 2 (Final
Act. 32—34), which recites, in part, the obtained snapshot comprising a
thread. Appellant’s arguments that Vick’s alleged shortcoming with respect
to (1) compressing and packetizing the obtained snapshot because Vick
merely relates to a stop command (see App. Br. 20; Reply Br. 20); and (2)
an obtained snapshot (see id. at 20) is unavailing. Notably, these arguments
are not germane to the limited purpose for which Vick was cited, namely for
teaching a snapshot including threads (see Final Act. 33 (citing Vick 132);
Ans. 106-07).
Furthermore, Appellant’s arguments do not specifically address—let
alone persuasively rebut (see Reply Br. 19—20)—the Examiner’s articulated
definition of a snapshot as including a current state of a thread on page 106
of the Answer. Rather, Appellant argues the Examiner took Official Notice.
See id. We disagree because the Examiner’s findings are based on the
ordinarily skilled artisan’s understanding of Vick’s obtained snapshot (see
Ans. 106—07). Given these uncontested findings in view of the Examiner’s
provided definition, the weight of the evidence favors the Examiner’s
position. See Final Act. 33.
Furthermore, Appellant’s argument that Jeong is silent regarding a
microprocessor that executes a work assignment engine in a contact center
and obtains a snapshot including variables and context (see App. Br. 21;
Reply Br. 20-21) that is also compressed and packetized (see id. 21) is not
germane to the limited purpose for which Jeong was cited, namely for
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detecting a failure of a thread during execution of the thread, and starting a
new thread based on the failed thread (see Final Act. 33—34).
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 2.
Claim 3
We do not sustain the Examiner’s obviousness rejection of claim 3
(Final Act. 34—35), which recites, in part, an obtained snapshot comprising
executing an operating thread with a work item being routed in a contact
center.
The Examiner finds that Vick discloses the recited snapshot including
an operating thread in paragraphs 32 and 35, and Figure 2. Final Act. 34—
35; Ans. 110—11. Appellant argues that Vick lacks the recited operating
thread. App. Br. 22. According to Appellant, Vick’s storage of data does
not relate to routing a work item in a contact center. Id. We agree.
Vick’s data repository stores threads’ states and information relating
to the execution of the threads. Vick 132. Vick’s data repository further
stores a process map of every process executed by application threads or
carried out by caller threads upon calling another process. Id. 135.
Although Vick’s data repository stores data relating to threads, the Examiner
has not shown that the data relates an operating thread with a work item
being routed in a contact center. See Final Act. 6. Accordingly, we are
persuaded that the Examiner erred in rejecting claim 3.
Because this issue is dispositive regarding the Examiner’s error in
rejecting this claim, we need not address Appellant’s other arguments.
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THE OBVIOUSNESS REJECTION OVER PETERSON, MUKHERJEE,
VICK, JEONG, AND CHRISTODOULOPOULOU
We do not sustain the Examiner’s obviousness rejection of claim 4
(Final Act. 35—36). Claim 4 depends from claim 3—the rejection of which
we find problematic, as noted previously. Because the Examiner has not
shown that Christodoulopoulou cures those deficiencies (see Final Act. 35—
36; Ans. 114—116), we will not sustain the Examiner’s rejection of claim 4.
Because this issue is dispositive regarding the Examiner’s error in
rejecting these claims, we need not address Appellant’s further arguments.
THE OBVIOUSNESS REJECTION OVER PETERSON, MUKHERJEE,
AND VICK
We sustain the Examiner’s obviousness rejection of claim 7 (Final
Act. 37—39) that recites, in pertinent part, detecting that at least one thread
has failed during execution of the at least one thread.
Appellant’s argument that Vick is not directed to a work assignment
engine and a microprocessor executing the work assignment engine in a
contact center (see App. Br. 26; Reply Br. 23—24) is not germane to the
Examiner’s findings in this regard, which are not based on Mukherjee alone,
but rather Peterson, Mukherjee, and Vick collectively. In addition,
Appellant’s argument that Vick does not detect that at least one thread has
failed during execution of the at least one thread do not address—let alone
persuasively rebut—the Examiner’s relied-upon passages in Vick’s
paragraph 71. See App. Br. 26—27. In paragraph 71, Vick explains that
node control master B sends an error message to master X when the node
control master B does not receive a stopped message from all child threads.
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In that sense, then, Vick at least suggests that the node control master B
determined that all child threads did not send a stopped message before
sending the error message to master X. Therefore, the Examiner’s finding in
this regard has at least a rational basis that has not been persuasively
rebutted. On this record, then, the weight of the evidence favors the
Examiner’s position. See Ans. 118. Accordingly, we are not persuaded that
the Examiner erred in concluding that claim 7 would have been obvious.
Therefore, we sustain the Examiner’s rejection of claim 7, and claim
13, not argued separately with particularity. See App. Br. 26—27, 36; Reply
Br. 23-24, 29.
THE OBVIOUSNESS REJECTION OVER PETERSON, MUKHERJEE,
VICK, AND AGUILAR
We also sustain the Examiner’s obviousness rejection of claim 8
(Final Act. 42-43) that recites validating a new thread prior to allowing the
new thread to begin running.
At the outset, we note Appellant’s argument that Aguilar is silent
regarding a work assignment engine or microprocessor executing the work
assignment engine (see App. Br. 27—28; Reply Br. 24) is not germane to the
Examiner’s findings in this regard, which are not based on Aguilar alone,
but rather Peterson, Mukherjee, Vick, and Aguilar collectively.
Because the term “validate” is not defined in the Specification, we
interpret the term with its plain meaning, namely “[t]o establish the
soundness of.” The American Heritage Dictionary 1972 (2d College ed.
1985). The Examiner finds that Aguilar’s monitored threads include new
thread validation. Ans. 121—22 (citing Aguilar || 40-41, 44). Aguilar
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determines whether an operational thread is functioning. Aguilar 140.
Determining whether the operational thread is functioning at least suggests
establishing the thread’s soundness. Therefore, Aguilar’s determination
whether the operational thread is functioning at least suggests also validating
the thread. Accordingly, the Examiner’s finding has at least a rational basis
that has not been persuasively rebutted. On this record, then, the weight of
the evidence favors the Examiner’s position. See Ans. 121—22.
Nor do we find error in the Examiner’s mapping of the recited new
thread’s validation prior to allowing the new thread to begin running.
Appellant’s arguments do not address—let alone persuasively rebut—the
Examiner’s additionally relied-upon passages in Aguilar’s paragraph 40.
See App. Br. 27—28; Reply Br. 25. In paragraph 40, Aguilar explains that
upon a determination that the operational thread is functioning, processing
returns a “Pass.” Therefore, the Examiner’s finding that Aguilar’s
determination that the operational thread is functioning is prior to allowing
the new thread to begin running. On this record, then, the weight of the
evidence favors the Examiner’s position.
We also find no error in the Examiner’s articulated reason to combine
the references (Final Act. 42-44; Ans. 121—22)—proposed enhancements to
the combination of Peterson, Mukherjee, and Vick that analyzes and debugs
failed threads before threads are relaunched. Despite Appellant’s arguments
to the contrary (App. Br. 29—30), the Examiner’s proposed combination is
not based solely on impermissible hindsight, but rather supported by
articulated reasoning with some rational underpinning to justify the
Examiner’s obviousness conclusion. See KSR Int’l Co. v. Teleflex Inc., 550
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U.S. 398, 418 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)).
Accordingly, we sustain the Examiner’s rejection of claim 8, and
claim 14, not argued separately with particularity. See App. Br. 28—30;
Reply Br. 25.
THE OBVIOUSNESS REJECTION OVER PETERSON, MUKHERJEE,
AND KAMBHAMMETTU
We also sustain the Examiner’s obviousness rejection of claim 12
(Final Act. 44-45) reciting compressing the snapshot and the delta using a
lossless compression codec.
Appellant’s argument that Kambhammettu is silent regarding a
microprocessor that (1) compresses and packetizes a snapshot and delta; and
(2) executes a work assignment engine in a contact center (see App. Br. 30-
31; Reply Br. 26) is not germane to the Examiner’s findings in this regard,
which are not based on Kambhammettu alone, but rather Peterson,
Mukherjee, and Kambhammettu collectively (see Final Act. 44-45).
Accordingly, we sustain the Examiner’s rejection of claim 12.
THE OBVIOUSNESS REJECTION OVER PETERSON, MUKHERJEE,
VICK, AND CHRISTODOULOPOULOU
We do not sustain the Examiner’s obviousness rejection of claim 16
(Final Act. 45—46) that recites executing a second instance by a second
server at a point in time when a thread having an interrupted context is
detected. The Examiner relies on Christodoulopoulou to teach the elements
of claim 16 because Peterson does not explicitly disclose the recited
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elements. See Final Act. 45 46; Ans. 128—29. However, the Examiner’s
rejection of claim 16 is premised on a quoted paragraph 132 that discusses
Figure 12 that is said to be disclosed in Christodoulopoulou. Yet that
paragraph does not exist in Christodoulopoulou, much less Figure 12.
Equally puzzling is Appellant’s argument that “this paragraph” (i.e.,
Christodoulopoulou’s non-existent paragraph 132) is silent performing the
execution at a point in time when a thread having an interrupted context is
detected. See App. Br. 31—32; Reply Br. 26—27.
To be sure, the Examiner may have meant to refer to Peterson’s
paragraph 132 instead of Christodoulopoulou, particularly in view of
Peterson’s discussion of Figure 12 in that paragraph. But we decline to
speculate in that regard here in the first instance on appeal. Doing so would
require us to essentially ignore the Examiner’s repeated citation to the
Christodoulopoulou reference that is said to cure Peterson’s deficiencies
with respect to claim 16’s limitations in both the rejection and the
Examiner’s Answer (Final Act. 45 46; Ans. 128—29)—clear notice of
specific facts ostensibly from Christodoulopoulou on which Appellant relied
in responding to the Examiner in the Appeal Brief and the Reply Brief. See
App. Br. 31—32; Reply Br. 26—27.
Although Appellant did not identify the Examiner’s apparent
oversight in citing Christodoulopoulou, Appellant nevertheless contested the
Examiner’s reliance on that reference. See id. Given these contested
findings, and the fact that the Examiner’s reliance on Christodoulopoulou is
erroneous on its face, we agree with Appellant at least to the extent that the
Examiner failed to establish a prima facie case of obviousness, and,
therefore, failed to satisfy the requisite burden of production. See In re
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Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011). Accordingly, we must reverse
this rejection. To do otherwise would sustain a rejection that is not based on
substantial evidence, for no reasonable mind would accept the Examiner’s
findings as adequate to support the Examiner’s obviousness conclusion. See
In re Gartside, 203 F.3d 1305, 1312 (Fed Cir. 2000).
Accordingly, we do not sustain the Examiner's rejection of claim 16,
and dependent claim 17 for similar reasons.
THE OBVIOUSNESS REJECTION OVER PETERSON, MUKHERJEE,
VICK, AND KERN
We sustain the Examiner’s obviousness rejection of claim 19 (Final
Act. 48—49), which recites the first and second servers separated by at least
ten miles, and the system-to-system codec causing the microprocessor to
transmit the snapshot using the packet-based communications network.
On this record, we see no reason why the proposed combination
would not result in a system with data stored on separate servers separated
by at least ten miles, particularly in light of Kern’s teaching in paragraph 26
of separating sites by hundreds—or even thousands—of miles. See Final
Act. 49; Ans. 138. Despite Appellant’s arguments to the contrary (see App.
Br. 34—35; Reply Br. 28), we see no reason why the servers in the proposed
combination could not be separated by at least the recited distance. To the
extent that Appellant contends that the disclosed servers could not be so
separated, there is no persuasive evidence on this record to prove such a
contention.
Further, Appellant’s argument that Mukherjee does not disclose a
system-to-system codec because Mukherjee’s transfer of data is not the same
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as the encoding of data (see App. Br. 35) is unavailing. As discussed above,
because the Specification’s description (see Spec. 1 6) only informs our
understanding of the recited system-to-system codec, we interpret the recited
term with its plain meaning of “codec.” With this construction, we see no
error in the Examiner’s broad, but reasonable, construction of a system-to-
system codec in light of the Specification. See Ans. 136—37 (citing
Mukherjee col. 3,11. 33—36; col. 3 1. 54 —col. 4,1. 24). Mukherjee’s transfer
of data includes a prior determination of whether to compress the data.
Mukherjee col. 3,11. 66—67. Upon determining to compress the data, the
data is compressed using a compression module. Id. at col. 4,11. 3—8.
Appellant’s arguments do not address—let alone persuasively rebut—the
Examiner’s additional relied-upon passages in Mukherjee. See App. Br. 26—
27. Accordingly, Mukherjee’s compression module at least suggests a
system-to-system codec.
Lastly, we find no error in the Examiner’s articulated reason to
combine the references (see Final Act. 48-49; Ans. 135—38)—proposed
enhancements to the Peterson/Mukherjee combination that, among other
things, provide continuous service to clients when a natural disaster occurs.
Despite Appellant’s arguments to the contrary (see App. Br. 35—36), the
Examiner’s proposed combination is not based solely on impermissible
hindsight, but rather is supported by articulated reasoning with some rational
underpinning to justify the Examiner’s obviousness conclusion. See KSR,
550 U.S. at 418.
Accordingly, we sustain the Examiner’s rejection of claim 19.
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CONCLUSION
Under § 103, the Examiner did not err in rejecting claims 1,2, and 5—
15, 18—20, but erred in rejecting claims 3, 4, 16, and 17.
Under § 112, the Examiner did not err in rejecting claims 11, 12, 16,
and 17, but erred in rejecting claims 4, 6, and 15.
DECISION
The Examiner’s decision to reject claims 1, 2, and 5—20 is affirmed.
The Examiner’s decision to reject claims 3 and 4 is reversed.
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-IN-PART
30