Ex Parte Wexler et al

Patent Trial and Appeal Board

Sep 26, 2014

12105092 (P.T.A.B. Sep. 26, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ASAF WEXLER
1

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Appeal 2011-007975
Application 12/105,092
Technology Center 2100
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Before GLENN J. PERRY, BRIAN J. McNAMARA, and
MITCHELL G. WEATHERLY, Administrative Patent Judges.

PERRY, Administrative Patent Judge.

DECISION ON APPEAL

1
VMware, Inc. is the assignee of the entire right, title and interest and is the
real party-in-interest.
Appeal 2011-007975
Application 12/105,092

2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-21. App. Br. 3.
2
We have jurisdiction under 35 U.S.C.
§ 6(b). For reasons set forth below, we affirm.
Appellant’s invention relates to controlling and managing the
performance of web applications in data centers, and more specifically to
monitoring database query transactions executed. See generally Spec.
¶ [0002]. It provides the ability to learn and monitor standard query
language (SQL) transactions sent from an application server hosting a web
application to a database server and executed thereon. See Abstract.
Three independent claims (1, 11 and 21) are pending in this appeal.
Claim 1 is directed to a method for monitoring backend transactions in data
centers, claim 11 is directed to a “computer-readable medium” but
substantially directed to the method described by claim 1, and claim 21 is
directed to a network device connected in a data center that is capable of
learning and monitoring transactions executed by backend systems. Claim 1
is illustrative and is reproduced below:
1. A method for monitoring of backend transactions in
data centers, comprising:
identifying, by a network device monitoring network
traffic, a backend query in a request sent to a backend system of
a data center;
parsing, by the network device, the backend query to
generate a backend skeleton;
classifying, by the network device, the backend skeleton
to a known backend transaction; and

2
Throughout this opinion, we refer to (1) the Appeal Brief (“App. Br.”) filed
November 8, 2010; (2) the Examiner’s Answer (“Ans.”) mailed February 8,
2011; and (3) the Reply Brief (“Reply Br.”) filed April 8, 2011.
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measuring, by the network device, performance
parameters for a classified backend skeleton.

The Examiner made the following rejections of claims 1-21:
1. The Examiner rejects claims 1-20 under 35 U.S.C. § 103(a) as
unpatentable over Harward
3
and Mangipudi.
4
Ans. 4.
2. The Examiner rejects claim 21 under 35 U.S.C. § 102(e) as
anticipated by Lam.
5
Id. at 8.

ANALYSIS
Claims 1-10
Regarding independent claims 1 and 11, the Examiner finds that
Harward, directed to database caching, discloses all features of the claim
except for measuring performance parameters for a classified backend
skeleton. Ans. 4-5. The Examiner relies upon Mangipudi with respect to
performance measurement. Ans. 5 citing to Mangipudi 3:22-35.
Appellant argues with respect to independent claim 1 that Harward
teaches away from “parsing … the backend query.” App. Br. 5. Appellant
points to Harward ¶¶ [0038]-[0041] as describing that query parsing is to be
avoided. App. Br. 8-9.
The Examiner points to Harward Fig. 2 steps 216, 222 and ¶ [0043] as
describing parsing a query to generate a backend skeleton. Ans. 10. The
Examiner also points to Harward Fig. 5 showing a “database listener” (step
128) and a database server, which together constitute the claimed “backend

3
US Patent Publication US2006-0271510 A1 published November 30, 2006.
4
US Patent 7,058,704 B1 issued June 6, 2006.
5
US Patent Publication US2008-0052271 A1 published February 28, 2008.
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system.” Ans. 10. Listener 128 parses information in a “trace file” to
determine individual queries that users executed to perform stored procedure
403. These individual queries meet the claim limitation “backend skeleton.”
Id.
We find no specific definition of “backend system” in Appellant’s
specification. We also find that it is clear from ¶ [0041] and other portions
of Harward that it was known to create skeletons of database queries (albeit
Harward discussed creating skeletons in the context of database caching).
Appellant also argues with respect to claims 1-10 that Harward does
not teach that the steps of “identifying,” “parsing,” and “classifying” are
implemented by a “network device monitoring network traffic.” App. Br. 9.
Appellant notes that Harward ¶ [0011] merely identifies an advantage
(increased performance) of locally caching database data and that Harward
¶ [0068] is directed to detecting actual changes to data in a database. App.
Br. 10. According to Appellant, network traffic is not monitored. Id.
Further, according to Appellant, the information relevant to Mangipudi is
not acquired from a network device monitoring network traffic. Id.
The Examiner takes the position that Harward states that its
processing system may include memory, mass storage, communications or
network interfaces and various I/O devices. Ans. 11. The Examiner further
notes that Harward describes that stored procedures improve database
performance by reducing total traffic between applications and the database.
Id. The Examiner concludes from these findings that traffic is monitored as
part of a handshake protocol present in every system before reducing total
traffic. Id.
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We are not persuaded by Appellant’s argument. Appellant does not
define the claim term “network device” in the specification. The Examiner
impliedly adopted a construction of “network device” that embraces
Harward’s “Listener 128” selecting queries by identifying those queries
from a trace file that includes identification associated with a caching
intermediary. Ans. 4. The language of claim 1 simply requires that the
functions of “identifying,” “parsing,” “classifying,” and “measuring” be
carried out by a “network device.” The network device is not characterized
in the claim with regard to its position in the data stream and how it interacts
with other components. Thus, Appellant has chosen to limit “network
device” only by broad functional recitations. Under the circumstances we
find the Examiner’s construction of “network device monitoring network
traffic” to be reasonable in embracing devices, such as in Harward, that
receive SQL requests and carry out the functions set forth in claim 1.
Appellant argues that Mangipudi is not relevant to the claim 1 feature
of “measuring performance parameters for a classified backend skeleton.”
App. Br. 10. The Examiner’s Final Office action cited Mangipudi as being
relevant to this claimed feature. Appellant argues that Mangipudi lists
deficiencies with a system that relies upon pre-defined SLA job flow tables.
Id. According to Appellant, it would not have been obvious to modify the
Harward system because the Harward teachings do not lend themselves to
use of the system for measuring performance parameters for a classified
backend skeleton because the Harward system detects actual changes to data
of a database. Query skeletons are utilized, but in a manner unrelated to
“measuring performance parameters for a classified backend skeleton.” Id.
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Thus, Appellant concludes that Mangipudi teaches away from the proposed
modification.
The Examiner points to Mangipudi 2:53-55 as supporting the
proposition that it is appropriate to modify the Harward system to include
measuring performance parameters as taught by Mangipudi. The Examiner
suggests that a person of ordinary skill in the art would have been motivated
to modify Harward to rely upon pre-defined SLA job flow tables for
determining which jobs should be run at a given time on a given day. Ans.
5.
We are not persuaded that one of ordinary skill would not have looked
to both Harward and Mangipudi. Appellant’s claimed invention combines
the concepts of data base query parsing with performance measurement.
Mangipudi is directed to performance measurement to determine whether
SLAs have been met. It operates on database queries.
Appellant has not persuaded us of error in the rejection of claim 1.
Appellant does not separately argue dependent claims 2-10. App. Br. 11.
For the reasons set forth above, we sustain the rejection of claims 1-10.

Claims 11-20
With regard to claims 11-20, Appellant argues that claim 11 describes
parsing a backend query to generate a backend skeleton, while Harward
teaches obtaining skeletons elsewhere so that queries need not be parsed. Id.
The argument continues — Mangipudi specifically teaches that relying upon
pre-defined SLA job flow tables results in a system with “major
disadvantage[s].” Id. (emphasis omitted).

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We are not persuaded by Appellant’s argument with respect to
independent claim 11. Claim 11 is directed to a “computer-readable
medium” that requires identifying “in network traffic” a backend query. We
find no definition of “network traffic” in the specification. We therefore do
not find the Examiner’s reading of claim 11 on Harward to be unreasonable.
Appellant has not persuaded us of error in the rejection of independent
claim 11. Appellant does not separately argue dependent claims 12-20. Id.
For the reasons set forth above, we sustain the rejection of claims 11-20.
Claim 21
Independent claim 21, directed to a “network device” reads:
21. A network device connected in a data center and
capable of learning and monitoring transactions executed by
backend systems, comprises:
a traffic processor for detecting backend queries in data
sent to the backend systems,
and wherein the traffic processor is further capable of
generating backend skeletons from backend transactions; and
a transaction learner for classifying backend skeletons to
identified backend transactions; and
a transaction monitor for measuring performance
parameters on backend transactions.

The Examiner finds that Lam anticipates independent claim 21. Lam
describes converging “a plurality of SQL statements into SQL skeletons for
enhanced database performance analysis and tuning.” Lam, Title (emphasis
and font omitted). Appellant argues that Lam does not describe a “traffic
processor” that provides detection of backend queries within data being sent
and generates backend skeletons. Id. at 12.
The Examiner effectively adopts a broad but reasonable construction
of “traffic processor” based on Appellant’s own description of “traffic
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processor” at page 5 of the specification which states “traffic processor
identifies SQL query in a request.” According to the Examiner, Lam does
just that.
The Examiner relies on Lam paragraph [0026] which describes that a
unique signature identifier (USI) is a singular numeric value used to identify
a SQL skeleton and distinguish it from other similar SQL skeletons. Thus,
the Examiner concludes that Lam uniquely defines SQL skeletons. The
Examiner reasons that the hashing algorithm embedded in the USI meets the
limitations of the claimed “traffic processor.” Ans. 13-14. The Examiner
notes that Lam’s “convergence tool” captures a SQL statement and
performance factors from the RDBMS platform 10 and generates an SQL
skeleton by stripping out variable strings from the SQL statement. Id. at 8.
Appellant argues that “a person of skill in the relevant art would not
understand the convergence tool 12 of Lam to be a traffic processor.” App.
Br. 12. However, Lam appears to carry out the function of Appellant’s
claimed “traffic processor” based on Appellant’s own specification
description at paragraph [0022], which states: “traffic processor identifies
SQL query in a request.” Appellant argues that a person skilled in the art
would understand from the description of (a) recording a plurality of SQL
statements (b) at defined time intervals (c) from a DBMS that the Lam
device does not anticipate a traffic processor for detecting backend queries
in data sent to backend systems. App. Br. 12. However, Appellant has not
limited their claims beyond the broadly stated “traffic processor” which they
could have done (and still can do).
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For the reasons set forth above, Appellant has not persuaded us of
error in the anticipation rejection over Lam of independent claim 21.
Therefore, we sustain the anticipation rejection of claim 21.

CONCLUSION
The Examiner did not err in rejecting claims 1-20 under § 103(a) as
unpatentable over Harward and Mangipudi and in rejecting claim 21 under
§ 102(e) as anticipated by Lam.

DECISION
The Examiner’s decision rejecting claims 1-21 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)(1)(iv).

AFFIRMED

alw

Patent Owner:

VMWare, INC.
Darryl Smith
3401 Hillview Ave.
Palo Alto, CA 94304