Microsoft Technology Licensing, LLC

Patent Trials and Appeals Board

Mar 25, 2022

2021001225 (P.T.A.B. Mar. 25, 2022)

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. 15/656,334 07/21/2017 Greg Thiel 335044-US-CNT 5595 69316 7590 03/25/2022 MICROSOFT CORPORATION ONE MICROSOFT WAY REDMOND, WA 98052 EXAMINER BUKHARI, SIBTE H ART UNIT PAPER NUMBER 2449 NOTIFICATION DATE DELIVERY MODE 03/25/2022 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): chriochs@microsoft.com ljohnson@microsoft.com usdocket@microsoft.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte GREG THIEL, MANOHARAN KUPPUSAMY, MIHAI R. JALOBEANU, and YOGESH BANSAL ___________________ Appeal 2021-001225 Application 15/656,334 Technology Center 2400 ____________________ Before JOSEPH L. DIXON, JOHNNY A. KUMAR, and JOHN A. EVANS, Administrative Patent Judges. EVANS, Administrative Patent Judge. DECISION ON APPEAL1 Appellant2 seeks our review under 35 U.S.C. § 134(a) from the final rejection of Claims 1-3, 5-11, and 13-22. Appeal Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Our Decision refers to Appellant’s Appeal Brief filed May 4, 2020 (“Appeal Br.”); Examiner’s Answer mailed September 3, 2020 (“Ans.”); the Final Action mailed November 1, 2019 (“Final Act.”), and the Specification filed July 21, 2017 (“Spec.”). 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. The Appeal Brief identifies Microsoft Technology Licensing, LLC, as the real party in interest. Appeal Br. 2. Appeal 2021-001225 Application 15/656,334 2 STATEMENT OF THE CASE INVENTION. The claims relate to an enhanced availability environment for facilitating a message service. See Abstr. Claims 1, 9, and 14 are independent. An understanding of the invention can be derived from a reading of Claim 1, which is reproduced below: 1. One or more computer readable media having stored thereon program instructions for implementing an enhanced availability process in a message service provided by a plurality of service elements, wherein the program instructions, when executed by a computer system, direct the computer system to: receive monitoring information corresponding to a monitored characteristic of a first service element of the plurality of service elements; determine an availability of the first service element for the message service based at least in part on the monitoring information and an availability characteristic of the first service element; and communicate the availability of the first service element to initiate an availability action comprising one or more of a failover, a removal, a restoration, and a recovery process when the determined availability meets an availability threshold. Appeal Br. 18 (Claims App.). Appeal 2021-001225 Application 15/656,334 3 Prior Art Name3 Reference Date Morrill US 2008/0049775 A1 Feb. 28, 2008 Knauerhase US 2008/0133674 A1 June 5, 2008 Gingell, Jr.; “Gingell” US 2009/0006526 A1 Jan. 1, 2009 REJECTIONS4 AT ISSUE 1. Claims 1-3, 5, 8-11, 13-17, and 20-22 stand rejected under 35 U.S.C. § 103 as obvious over Knauerhase and Gingell. Final Act. 3-8. 2. Claims 6, 7, 18, and 19 stand rejected under 35 U.S.C. § 103 as obvious over Knauerhase, Gingell, and Morrill. Final Act. 8-10. ANALYSIS We review the appealed rejections 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) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). We have considered in this decision only those arguments Appellant actually raised in the Briefs. Any other arguments which Appellant could have made but chose not to make in the Briefs are deemed to be forfeit. See 37 C.F.R. § 41.37(c)(1)(iv) (2019). After considering the evidence presented in this Appeal and each of 3 All citations herein to the references are by reference to the first named inventor/author only. 4 The present application is being examined under the pre-AIA first to invent provisions. Final Act. 2. Appeal 2021-001225 Application 15/656,334 4 Appellant’s arguments, we are not persuaded that Appellant identifies reversible error. We add the following primarily for emphasis. CLAIMS 1-3, 5, 8-11, 13-17, AND 20-22: OBVIOUSNESS OVER KNAUERHASE AND GINGELL, JR. Claims 1-3 and 5-8. Availability characteristic. Claim 1 recites, inter alia: “determine an availability of the first service element for the message service based at least in part on the monitoring information and an availability characteristic of the first service element.” The Examiner finds this element is not taught by Knauerhase, but is taught by Gingell. Final Act. 4 (citing Gingell, ¶ 107). Appellant contends, that in contrast with the claimed invention, Gingell does not determine “an availability of a first service element based at least in part on monitoring information and an availability characteristic.” Appeal Br. 11. Rather, Appellant argues that Gingell determines whether a current service level satisfies a service-level agreement based on “monitoring data that indicate a current service level of a service provided by distributed computing system 2.” Id. (quoting Gingell, ¶ 107). Appellant argues that Gingell teaches a service-level agreement “describes an expected level of service for a service provided by distributed computing system 2.” Appeal Br. 12 (quoting Gingell, ¶ 33). Appellant cites an example of Gingell’s “service level.” Id. (quoting Gingell, ¶ 46) (“For instance, one or more governor modules operating in governance infrastructure 104 may determine that distributed computing system 2 is not responding to requests fast enough to comply with a service-level agreement.”). Thus, Appellant argues that in contrast to Gingell, Claim 1 “determine[s] an availability of the first service element for the message Appeal 2021-001225 Application 15/656,334 5 service based at least in part on the monitoring information and an availability characteristic of the first service element.” Appeal Br. 12. The Examiner finds: “Gingell discloses the managing of resources in a service-oriented computing system and the service governors and the resource governors may be implemented using finite state machines.” Ans. 4. The Examiner finds Gingell discloses determining an availability of the first service element for the message service based at least in part on the monitoring information because Gingell teaches that when a current level of service exceeds a service-level required by a service level agreement (SLA), an SLA governor causes a lower service level to be provided. Id. (citing Gingell, ¶ 107). The Examiner further finds the claim requires that the determination of the first service element is based on an availability characteristic of the first service element. Id. The Examiner finds Appellant’s Specification defines the claimed “availability characteristic”: Availability characteristics generally pertain to the operational state of a service element. Such as whether or not the service element is functioning at all. The availability of a particular service element, such as a hardware or software element that provides an aspect of the message service, can trigger alerts and other actionable events that require relatively immediate attention compared to monitored characteristics. Ans. 4 (quoting Spec., ¶ 27) (underlining deleted). In view of Appellant’s Specification, the Examiner finds Gingell discloses where a determination that a current service level of a service provided by a distributed computing system is not in compliance with a service-level agreement, the SLA governor may output events that cause the distributed computing system to enhance the current service level of the service. Ans. 5. The Examiner further finds where an SLA governor determines that a current service level Appeal 2021-001225 Application 15/656,334 6 of a service provided by a distributed computing system exceeds a service level required by a service-level agreement, the SLA governor may output events that cause the distributed computing system to provide a lower service level of service. Therefore, the Examiner finds Gingell discloses the determination of availability of the first service element for the message service based at least in part on the monitoring information and an availability characteristic of the first service element, as claimed. Id. Appellant does not file a Reply. Communicate the availability of the first service element. Appellant contends the combination of Knauerhase and Gingell fails to teach or suggest: “communicate the availability of the first service element to initiate an availability action comprising one or more of a failover, a removal, a restoration, and a recovery process when the determined availability meets an availability threshold,” as claimed. Appeal Br. 13. Appellant notes the Examiner finds Gingell teaches each resource may have a status of “started,” “stopped,” “failed, “failed to start,” “failed to stop,” and “available.” Appeal Br. 13 (citing Final Act. 4). Appellant argues, that in contrast with the claimed invention, Gingell is not communicating an “availability” determined based at least in part on monitoring information and an availability characteristic. Instead, Gingell at paragraph [0108] explains that, “[s]ervice governors 432 may govern a service by controlling statuses of resources that provide the service,” and provides examples of [such] statuses. Appeal Br. 13. Thus, Appellant argues: “Gingell teaches updating resource statuses and using resource statuses to filter candidate resource chains.” Id., at 14 (citing Gingell, ¶¶ 110-111). Appeal 2021-001225 Application 15/656,334 7 The Examiner finds Gingell communicates an “availability” determined based at least in part on monitoring information and an availability characteristic. See Discussion above. Appellant does not file a Reply. Motivation to combine Knauerhase and Gingell. Appellant argues: The Examiner appears to be modifying the provider presence system of Knauerhase to include Gingell’s method of monitoring compliance with a service-level agreement. The reasoning provided by the Examiner for such a modification of Knauerhase’s system to support obviousness is that “this techniques advantageously allows to enhance the service level of the flux service when the current service level of the flux service does not satisfy a service-level agreement.” Appeal Br. 14 The Examiner re-states the finding regarding motivation. Ans. 13. R.23. Appellant does not file a Reply. We are not persuaded the Examiner errs regarding Claims 1-3 and 5- 8. Claims 9-11, 13, and 22. Appellant contends Claim 9, and dependent Claims 10, 11, 13, and 22 are patentable for at least the same reasons as Claim 1. Appeal Br. 16. For the reasons discussed above, we are not persuaded the Examiner errs. Claims 14-20. Appellant contends Claim 14, and dependent Claims 15-20 are patentable for at least the same reasons as Claim 1. Appeal Br. 16. Appeal 2021-001225 Application 15/656,334 8 For the reasons discussed above, we are not persuaded the Examiner errs. In view of the foregoing, we sustain the rejections of Claims 1-3, 5, 8-11, 13-17, and 20-22. CLAIMS 6, 7, 18, AND 19: OBVIOUSNESS OVER KNAUERHASE, GINGELL, AND MORRILL. Appellant does not separately argue these claims. In view of the foregoing, we sustain the rejections of Claims 6, 7, 18, and 19. CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 5, 8- 11, 13-17, 20-22 103 Knauerhase, Gingell 1-3, 5, 8- 11, 13-17, 20-22 6, 7, 18, 19 103 Knauerhase, Gingell, Morrill 6, 7, 18, 19 Overall Outcome 1-3, 5-11, 13-22 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