Amir Peles et al.

Patent Trials and Appeals Board

Dec 23, 2019

14079344 - (D) (P.T.A.B. Dec. 23, 2019)

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.
14/079,344 11/13/2013 Amir Peles RADW P0061C1 3278
122066 7590 12/23/2019
M&B IP Analysts, LLC
500 Headquarters Plaza
Morristown, NJ 07960-7070
EXAMINER
RECEK, JASON D
ART UNIT PAPER NUMBER
2458
NOTIFICATION DATE DELIVERY MODE
12/23/2019 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):
eofficeaction@appcoll.com
michael.benshimon@gmail.com
pair@mb-ip.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte AMIR PELES and SHY MAROM
________________

Appeal 2019-000148
Application 14/079,344
Technology Center 2400
________________

Before DEBRA K. STEPHENS, JASON V. MORGAN, and
JAMES B. ARPIN Administrative Patent Judges.

MORGAN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Introduction
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–12 and 14–21. Claim 13 is canceled.
Appeal Br. 29. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party-in-interest as RADWARE,
LTD. Appeal Br. 3.
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Application 14/079,344

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Summary of the Disclosure
Appellant’s claimed subject matter relates to “computing an optimal
deployment of at least one web application in a multi-datacenter system”
through a process that includes “generating a recommendation on an optimal
deployment of the web application . . . by computing an expected [service
level agreement] that can be guaranteed to . . . clients in each combination of
datacenters.” Abstract.
Illustrative Claim (disputed limitations emphasized)
1. A method for an optimal deployment of at least one web
application in a multi-datacenter system, comprising:
collecting performance measurements with regard to a web
application executed in the multi-datacenter system, wherein
the performance measurements are collected from at least
probes and measuring units that are communicatively connected
to each datacenter in the multi-datacenter system;
grouping the performance measurements according to locations
of a plurality of clients accessing the web application;
computing using the grouped performance measurements
stored in a performance table an expected service level
agreement (SLA) for clients in the plurality of client locations
that can be guaranteed to the clients in each combination of the
datacenters in the multi-datacenter system;
determining an optimal deployment of the web application in at
least one combination of the datacenters in the multi-datacenter
system based on the computed expected SLA, wherein the
optimal deployment ensures that the computed expected SLA
satisfies a SLA guaranteed to the clients; and
causing the deployment of the web application in the at least
one combination of the datacenters in the multi-datacenter
system according to the determined optimal deployment.
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The Examiner’s Rejections and Cited References
The Examiner rejects claims 1–12 and 14–21 under 35 U.S.C.
§ 103(a) as unpatentable over the combined teachings of Wei (US
2010/0228819 A1; published Sept. 9, 2010), Hadar et al. (US 2011/0270804
A1; published Nov. 3, 2011) (“Hadar”), and Curley et al. (US 7,937,470 B2;
issued May 3, 2011) (“Curley”). Final Act. 3–8.
ANALYSIS
In rejecting claim 1, the Examiner relies on the combined teachings of
Wei, Hadar, and Curley to teach or suggest “computing using the grouped
performance measurements stored in a performance table an expected
service level agreement (SLA) for clients.” See Final Act. 4–5. Specifically,
the Examiner relies on Wei’s application delivery network—which monitors
and manages all nodes in a network (e.g., deploying and running
applications to and on optimal locations)—to teach or suggest “computing
using . . . performance measurements stored in a table.” See id. at 4 (citing
Wei Figs. 5, 11, ¶¶ 60–61, 67, 70, 75). The Examiner relies on Hadar’s use
of service level agreements or objectives—which are used to define metrics
and indicators—to teach or suggest the computing of “an expected service
level agreement (SLA) for clients.” See id. at 4–5 (citing Hadar ¶¶ 37–38,
73). The Examiner relies on Curley’s monitoring of a site’s availability,
response times, and transactions from multiple remote monitoring locations
to teach or suggest the performance measurements being “grouped.” See id.
at 5 (citing Curley Figs. 5–7, 9, 10B–C, col. 25, l. 35–col. 26, l. 46).
Appellant contends the Examiner erred because “Hadar does not
teach or suggest a computed expected” service level agreement. Appeal
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Br. 15. That is, “the claimed ‘expected SLA’ is not just . . . [a set of]
performance measurements” (Reply Br. 9 (italic emphasis added)) as the
Examiner concludes (see Ans. 7). Appellant further argues that Wei and
Curley fail to cure the alleged deficiency of Hadar. See Reply Br. 5, 9.
We agree with Appellant that the Examiner erred because, as
Appellant persuasively argues, the Examiner fails to give weight to the “the
word ‘expected’ in the . . . phrase ‘expected SLA.’” Reply Br. 9. The
Examiner finds that the “performance monitoring” of Curley (Ans. 7 (citing
Curley col. 2, ll. 64–66)) and the “performance metrics” of Hadar2 (id.
(citing Hadar ¶ 37)) disclose “calculating an ‘expected SLA’ because the
scope of that term really just refers to what performance measurement the
application is currently providing as opposed to any ‘agreed’ upon
performance level” (id. at 8). The Examiner’s analysis is predicated on the
“expected SLA” being described in the Specification as “TT [transaction

2 In summarizing the pertinent findings, the Examiner states that “[t]he
performance measurements taken by Wei, and Curely are the ‘expected
SLA.’” Ans. 8 (emphasis added); see also id. at 7–8 (“the art (both Wei and
Curely) clearly discloses monitoring performance measurements” (emphasis
added)). These appear to be typographical errors, however, because with
respect to the disputed recitation the Examiner does not cite with
particularity to Wei, but instead cites to Hadar. See, e.g., id. at 7 (“Hadar
teaches that performance metrics are associated with a service model and are
defined by using a Service Level Agreement (paragraph 37)”). Moreover,
the Examiner finds that “Wei does not explicitly disclose using an SLA or
ensuring the expected SLA satisfies a guaranteed SLA[;] however[,] this is
taught by Hadar (paragraphs 37–38 and 73).” Final Act. 4 (emphasis added).
Appellant also argues Hadar (Reply Br. 9). We thus find this to be harmless
error.
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time] values together with RTT [round-trip time] values [to] allow
computing of the ‘expected SLA.’” Ans. 7 (citing Spec. ¶ 313). But the
Specification discloses the use of “projected TT values together with the
RTT values [to] allow computing the expected SLA . . . if executed in a
particular datacenter.” Spec. ¶ 31 (emphases added) (quoted in Reply Br. 9).
That is, the claimed “expected SLA” represents a projection of a
hypothetical execution of an application in a particular datacenter rather than
merely performance measurement. See also Spec. ¶ 32 (a projected
transaction time value is a value that has been extrapolated). Thus, the
Examiner’s interpretation of the “expected SLA” is unreasonably broad
when the recitation is read in light of the Specification. Therefore, the
Examiner’s findings and analysis fail to show that the combined teachings of
Wei, Hadar, and Curley teach or suggest “computing using the grouped
performance measurements stored in a performance table an expected
service level agreement (SLA) for clients,” as recited in claim 1.
Accordingly, we do not sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of claim 1, and of claims 2–12 and 14–21, which contain similar
recitations.

3 The Examiner cites to paragraph 32 instead of paragraph 31 of the
Specification. Ans. 7. This appears to be a typographical error, however,
because although the disclosure of the Specification’s paragraph 32 includes
“SLA guarantee parameters” and “a projected (extrapolated) TT value,” the
term “expected SLA” is found in preceding paragraph (i.e., the
Specification’s paragraph 31). This is harmless error.
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Application 14/079,344

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CONCLUSION
Claims
Rejected 35 U.S.C. § References Affirmed Reversed
1–12, 14–21 103(a) Wei, Hadar, Curley 1–12, 14–21

REVERSED