Mahendra M. Chheda et al.Download PDFPatent Trials and Appeals BoardJul 30, 201913479146 - (D) (P.T.A.B. Jul. 30, 2019) Copy Citation 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. 13/479,146 05/23/2012 Mahendra M. Chheda 090204-0830790 (038800US) 6573 107508 7590 07/30/2019 Kilpatrick Townsend & Stockton LLP/ Amazon, Inc Mailstop: IP Docketing 22 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 EXAMINER SANTOS-DIAZ, MARIA C ART UNIT PAPER NUMBER 3689 NOTIFICATION DATE DELIVERY MODE 07/30/2019 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): ATI-Patents@kilpatricktownsend.com KTSDocketing2@kilpatrick.foundationip.com ipefiling@kilpatricktownsend.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MAHENDRA M. CHHEDA, SHAWN E. HEIDEL, ROBERT B. JAYE, JUSTIN K. BRINDLEY-KOONCE, and ERIC JASON BRANDWINE ____________ Appeal 2018-004136 Application 13/479,146 Technology Center 3600 ____________ Before BARBARA A. BENOIT, HUNG H. BUI, and MICHAEL M. BARRY, Administrative Patent Judges. BARRY, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1 and 4–12.1 See App. Br. 6–7; Final Act. 1.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Claims 2 and 3 have been cancelled, and claims 13–24 have been withdrawn. See App. Br. 39, 41–43 (Claims App’x). 2 The Examiner’s Answer withdraws the Final Office Action’s rejection under U.S.C. § 101 of claims 1 and 4–12. See Ans. 3. Appeal 2018-004136 Application 13/479,146 2 Technology Background The present application relates to “providing resource allocation advice regarding data storage, access, placement, and/or related web services to web service users via a computing resource and/or service provider,” where “resource allocation advice may be provided to the user, automatic remediation may be performed, and/or one or more settings (e.g., for manual remediation) may be provided to the user,” “[b]ased . . . on the outcome of [a] best practice check.” App. Br. 1 (quoting Spec. ¶¶ 10, 22) (brackets by Appellants). Illustrative Claim Claims 1 and 7 are independent; claim 1 is illustrative: 1. A computer-implemented method for performance management of a distributed system, comprising: generating, by a computing system, at least one configuration setting associated with operation of one or more computer systems; instructing, by the computing system, the one or more computer systems implementing a virtual machine to perform an operation on an operatively attached data store, the operation being performed on behalf of a user; receiving, by the computing system and from the virtual machine of the one or more computer systems operating on behalf of the user, information associated with the operation performed on the operatively attached data store, the received information including configuration information related to the virtual machine and usage information related to the operation performed on the operatively attached data store, the usage information indicating data access requests performed by the operatively attached data store on behalf of the user and time intervals that correspond to the data access requests performed by the operatively attached data store on behalf of the user, the configuration information identifying at least one operation performed by the operatively attached data store that is based at Appeal 2018-004136 Application 13/479,146 3 least in part on an application programming interface (API) stream associated with the virtual machine; determining, by the computing system, based at least in part on the received usage information, a first indication of how the data store is being utilized with relation to the at least one configuration setting; determining, by the computing system, based at least in part on the received configuration information and a stage of an account associated with the user and the operatively attached data store, a second indication of how at least one account setting is configured with relation to the at least one configuration setting, the stage of the account comprising at least one a development stage, a testing stage, or a production; determining, by the computing system, based at least in part on the first indication and the second indication, a performance recommendation associated with operation of the operatively attached data store; and instructing, by the computing system, the one or more computer systems to perform an optimization performance operation with respect to the operatively attached data store based at least in part on the determined performance recommendation. App. Br. 38–39 (Claims App’x) (disputed limitations shown in italics). The Pending Rejections The Examiner rejected claims 1 and 4–12 under 35 U.S.C. § 112, first paragraph, for failing to comply with the written description requirement. Final Act. 3–5.3 The Examiner rejected claims 1 and 4–12 under 35 U.S.C. § 103(a) as unpatentable over Prafullchandra (US 2010/0070319 A1; pub. Mar. 18, 3 In response to the Appeal Brief, the Answer withdraws one of the Final Action’s two bases for the written description rejection. See Ans. 6. Appeal 2018-004136 Application 13/479,146 4 2010), Sivasubramanian (US 2010/0250748 A1; pub. Sept. 30, 2010), and Isaacs (US 2010/0082378 A1; pub. Apr. 1, 2010). Final Act. 14–37. ANALYSIS The 35 U.S.C. § 112 Written Description Rejection The Examiner finds that Appellants’ Specification does not provide written description support for claim 1’s disputed limitations of determining, by the computing system, based at least in part on the received configuration information and a stage of an account associated with the user and the operatively attached data store, a second indication of how at least one account setting is configured with relation to the at least one configuration setting, the stage of the account comprising at least one [of] a development stage, a testing stage, or a production [stage]. Final Act. 3–5; Ans. 3–6. The Examiner similarly finds the Specification does not provide written description support for claim 7’s recited step of analyzing, by the computing system, the received information based at least in part on at least one configuration test to determine whether the usage operation conforms with a resource usage rule and whether the at least one setting of the virtual machine matches a recommended setting further based at least in part on a stage of an account associated with the user and the data source, the stage of the account comprising at least one of a development stage, a testing stage or a production stage. Id.4 (emphasis omitted). Appellants contend the Examiner errs because, vis-à-vis claim 1’s disputed limitations, 4 The dependent claims stand rejected for lack of written description support based on their dependency on the independent claims. Appeal 2018-004136 Application 13/479,146 5 the originally filed [S]pecification does provide support for the above recited features of the claims as the [S]pecification, at multiple locations, describes using various data points to determine or check how at least one account setting is configured with relation to the at least one configuration setting (i.e., the received configuration information and a stage of an account associated with the user and the operatively attached data store). Reply Br. 3–4 (citing Spec. ¶¶ 11–15, 23, 25, 41, 44, 46, 47, 52, 77, 89, 92). For claim 7, Appellants contend the as-filed [S]pecification provides support for using the stage of the account, particularly with reference to the usage of the operatively attached data store that reflects the stage of the account (e.g., testing stage, production stage, or development stage) to perform the best practice checks, configuration setting checks, health checks, etc., to compare a recommendation setting. Id. at 4. Appellants’ argument is persuasive. Compliance with the written description requirement is a question of fact that is context-sensitive. Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc) (“[T]he level of detail required to satisfy the written description requirement varies depending on the nature and scope of the claims and on the complexity and predictability of the relevant technology.”). To fulfill the written description requirement, the “specification must clearly allow persons of ordinary skill in the art to recognize that [the inventor] invented what is claimed.” Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1479 (Fed. Cir. 1998) (citation and quotation omitted). Here, Appellants’ Specification describes determining “resource allocation advice” based on one or more of a variety of factors, such as “best practice checks, user settings, [and] configurations.” Spec. ¶ 11. The Appeal 2018-004136 Application 13/479,146 6 Specification further describes that determining “a level of advisement” may be “based at least in part on received profile information associated with usage of [an] account” that “indicates whether the usage of the account is in a development stage, a testing stage, or a production stage.” Spec., Original Claims 13–15. Ordinarily skilled artisans would have understood that this disclosure demonstrates Appellants were in possession of the disputed limitations’ requirements for “determining, by the computing system, based at least in part on the received configuration information and a stage of an account associated with the user, . . . [an] indication,” as recited in claim 1, and similarly recited in claim 7. The information for fixing account settings is an embodiment of the recited “second indication.” The Specification clarifies that it is an “indication of how at least one account setting is configured with relation to the at least one configuration setting,” as recited, because the Specification explains that a “best practice check” can indicate information for “fixing the account settings to comply with the best practice guidelines.” Spec. ¶ 14. Artisans of ordinary skill would have understood from Appellants’ Specification that the information for fixing account settings may be determined based on received “user settings” information, which constitutes received (and related) configuration information. Id. ¶ 11. Further, the information for fixing account settings is an “indication of how [an] account setting is configured with relation to [a] configuration setting,” as recited, because the account settings relate to or include (or, in the claim’s vernacular, are “configured with relation to”) configuration settings such as user security settings, which the Specification identifies as an exemplary configuration setting. Id. ¶ 30. Appeal 2018-004136 Application 13/479,146 7 Thus, Appellants persuade us the Examiner errs in finding the as-filed Specification does not provide written description support for claims 1 and 7. For similar reasons, Appellants persuade us the Examiner similarly errs in the written description rejection of claim 7, which was similarly rejected. See Reply Br. 8; Final Act. 3–5. Accordingly, we do not sustain the rejection under 35 U.S.C. § 112, first paragraph, of claims 1 and 4–12. The 35 U.S.C. § 103(a) Obviousness Rejection The Board “reviews the obviousness rejection[s] for error based upon the issues identified by appellant, and in light of the arguments and evidence produced thereon.” Ex Parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)).5 Arguments not made are deemed waived. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 16 Appellants contend the Examiner errs in finding the cited prior art teaches or suggests the disputed limitation in claim 1 discussed above for the § 112 written description rejection. In particular, Appellants argue the Examiner errs because Isaacs does not teach or suggest “determining . . . based at least in part on the received configuration information and a stage of an account associated with the user and the operatively attached data store, a second 5 See also 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.”). 6 Based on Appellants’ arguments in the Appeal Brief, claim 7 stands or falls with claim 1, as do the dependent claims, with the exception of claim 5. See App. Br. 34–37. Appeal 2018-004136 Application 13/479,146 8 indication of how at least one account setting is configured with relation to the at least one configuration setting” where the stage of the account comprises at least one of a “development stage, a testing stage, or a production stage.” App. Br 33 (quoting claim 1). This argument is unpersuasive because the rejection relies on Prafullchandra, not merely Isaacs, for teaching significant portions of the argued portion of the disputed limitation. See Final Act. 20 (citing Prafullchandra ¶¶ 38, 50). One cannot show nonobviousness by attacking references individually when the rejection is based on a combination of references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Furthermore, each reference cited by the Examiner must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The relevant inquiry is whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of the cited references. Keller, 642 F.2d at 425. In support of the obviousness rejection, the Examiner relies on Prafullchandra for teaching disputed limitation’s requirements for “determining . . . based at least in part on the received configuration information, a second indication of how at least one account setting is configured with relation to the at least one configuration setting,” as recited. Final Act. 20 (emphasis omitted). The Examiner then relies on Isaacs to “fill the gap” for those requirements in the disputed limitation missing from Prafullchandra, and explains why it would have been obvious to combine the teachings of Isaacs and Prafullchandra. Id. at 23–24 (citing Isaacs ¶¶ 5, 27– 28, Fig. 2) (explaining “Prafullchandra does not disclose taking into Appeal 2018-004136 Application 13/479,146 9 consideration a stage of the account in order to make such determination” and “Isaacs in introduced to cure such deficiency by disclosing a testing phase in which the system is able to collect data and compare the collected data with the baseline data in order to make a recommendation”); see also Ans. 7 (discussing the combined teachings of Prafullchandra and Isaacs). Appellants contend Isaacs does not teach or suggest “testing data that corresponds to ‘a stage of an account associated with the user and the operatively attached data store,’ where the stage of the account comprises at least one of a ‘development stage, a testing stage, or a production stage,’ as recited.” Reply Br. 5. We disagree. Isaacs discloses a system for optimizing business processes that retrieves “testing data on a business application” prior to the application’s deployment, which establishes “a bank of baseline data” for business processes. Isaacs ¶¶ 5, 27. Isaacs further discloses retrieving “actual data on the business application” during the application’s deployment, which is analyzed against the baseline data to determine whether a particular in-use business process had been tested in the testing stage. Id. (also teaching the determination of business process quality and usability). Thus, contrary to Appellants’ argument, the “testing data” disclosed by Isaacs, which indicates if the software was tested in a testing stage, corresponds to “a stage of an account associated with the user,” as recited.7 Appellants further contend “the Answer and the Office Action fail to explain how an equivalent account setting in Isaacs is configured with relation to a configuration setting by utilizing the ‘received configuration information and a stage of an account associated with a user and the 7 There is no dispute over “the operatively attached data store” requirement. Appeal 2018-004136 Application 13/479,146 10 operatively attached data store.’” Reply Br. 5. This is unpersuasive because it does not rebut the finding in the Answer and the Final Rejection that Prafullchandra teaches the recited use of “received configuration information.” See Final Act. 20, 23 (emphasis omitted); Ans. 7; Merck, 800 F.2d at 1097; Keller, 642 F.2d at 425. Accordingly, Appellants do not persuade us the Examiner errs in the rejection of claim 1 under 35 U.S.C. § 103(a), and we sustain its rejection. Claim 7 In the Appeal Brief, Appellants present no substantive arguments of Examiner error separate from the arguments for claim 1. App. Br. 34–35. In the Reply Brief, however, Appellants present a new argument for why the Examiner erred the rejection of claim 7. Reply Br. 5–7. In particular, Appellants argue the Examiner errs in finding Isaacs teaches or suggests “analyzing . . . the received information based at least in part on at least one configuration test to determine whether the usage operation conforms with a resource usage rule and whether the at least one setting of the virtual machine matches a recommended setting further based at least in part on a stage of an account associated with the user and the data source,” where “the stage of the account compris[es] at least one of a development stage, a testing stage, or a production stage,” as recited by independent claim 7. The Office fails to provide any explanation of how the business data from Isaacs is similar to the stage of the account of Appellant[s’] claims nor is there any description of Isaacs that the information (bank of baseline data about business processes) is used in a similar fashion as Appellant[s’] claim to “determine whether the usage operation conforms with a resource usage rule,” as recited in independent claim 7. Reply Br. 7 (first brackets by Appellants). Appeal 2018-004136 Application 13/479,146 11 In other words, unlike the Appeal Brief, the Reply Brief challenges the Examiner’s finding that Isaacs teaches or suggests the recited analyzing “to determine whether the usage operation conforms with a resource usage rule,” as recited. However, Appellants provide no explanation for not raising this argument in the Appeal Brief, such as a new point in the Examiner’s Answer or any other circumstance constituting “good cause” that justifies this new argument. Thus, we find this argument untimely and waived. See 37 C.F.R. § 41.41(b)(2); see also Ex parte Borden, 93 USPQ2d 1473, 1473–74 (BPAI 2010). Regardless of Appellants’ waiver, this argument is also unpersuasive because it does not address the Examiner’s finding that Prafullchandra teaches “analyzing, by the computing system, the received information based at least in part on at least one configuration test to determine whether the usage operation conforms with a resource usage rule and whether the at least one setting of the virtual machine matches a recommended setting.” Final Act. 29–30 (citing Prafullchandra ¶¶ 10–11, 21, 33, 38, 45–54). Accordingly, we sustain the § 103(a) rejection of claim 7. Claim 5 Claim 5 (which depends from claim 1 through claim 4) recites “[t]he computer-implemented method of claim 4, wherein the at least one performance check is based at least in part on a user preference.” App. Br. 39 (Claims App’x). The Examiner relies on Prafullchandra for teaching this recited requirement. Final Act. 24–25 (citing Prafullchandra ¶¶ 44, 66, 72); Ans. 10–11 (additionally citing Prafullchandra ¶¶ 25, 30, 35). Appellants contend the Examiner errs because “Prafullchandra merely recites that different topics are defined in a learning template and that Appeal 2018-004136 Application 13/479,146 12 activit[i]es that involve minimal risk are given highest priority. However, this is not the same as or suggestive of ‘at least one performance check is based at least in part on a user preference.’” App. Br. 36. Appellants’ argument is unpersuasive of Examiner error. The Examiner relies on Prafullchandra’s teaching of performance analysis being part of the analysis for the recommendation of the configuration. Final Act. 25; see also Final Act. 24 (citing Prafullchandra ¶¶ 25, 38, 44, 50, 66, 72, Fig. 3 regarding claim 4); Ans. 10 (reiterating Prafullchandra discloses the performance check recited in claim 4 from which claim 5 depends). Prafullchandra discloses an automated configuration management system (ACMS) that monitors and measures data, including a dynamic resource usage over time to “identify instances where current resource utilization is out of compliance with established guidelines and/or normal operating behavior.” Prafullchandra ¶ 38. Based on the teachings of Prafullchandra, ordinarily skilled artisans would have understood Prafullchandra’s ACMS performs performance checks. Related to its performance checking, the ACMS cycles through phases of “monitoring, analyzing, recommending and applying changes.” Id. ¶ 33. Prafullchandra further discloses controlling or configuring the ACMS in two modes, one of which allows an administrator to make decisions based on monitoring and observations. Id. ¶ 35; Ans. 10–11. The administrator’s decisions can be “used as a basis for making (or not making) future recommendations” for making changes to the ACMS that may (or may not) be applied. Id. ¶ 35; Ans. 10–11. Based on the foregoing disclosure of Prafullchandra, ordinarily skilled artisans would have understood that a decision made by an administrator Appeal 2018-004136 Application 13/479,146 13 constitutes “a user preference” and that such decisions or preferences of the administrator will affect the performance checking of the ACMS system during the monitoring phase or the analyzing phase, thus, teaching or suggesting “at least one performance check is based at least in part on a user preference,” as recited. Accordingly, we sustain the § 103(a) rejection of claim 5. DECISION For the above reasons, we— reverse the rejection of claims 1 and 4–12 under 35 U.S.C. § 112, first paragraph; and affirm the rejection of claims 1 and 4–12 under 35 U.S.C. § 103(a). Because we have affirmed at least one ground of rejection with respect to each claim on appeal, the Examiner’s decision is affirmed. See 37 C.F.R. § 41.50(a)(1). 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 Copy with citationCopy as parenthetical citation