10929878 (P.T.A.B. Jun. 13, 2013)

Ex Parte Anerousis et al

Patent Trial and Appeal BoardJun 13, 2013

10929878 (P.T.A.B. Jun. 13, 2013)

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. 10/929,878 08/30/2004 Nikolaos Anerousis YOR920040396US1 6371 48062 7590 06/13/2013 RYAN, MASON & LEWIS, LLP 1300 POST ROAD SUITE 205 FAIRFIELD, CT 06824 EXAMINER MASKULINSKI, MICHAEL C ART UNIT PAPER NUMBER 2113 MAIL DATE DELIVERY MODE 06/13/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte NIKOLAOS ANEROUSIS, ELIZABETH ANN BLACK-ZIEGELBEIN, SUSAN MAUREEN HANSON, LILY BARKOVIC MUMMERT, and GIOVANNI PACIFICI 1 ____________________ Appeal 2010-011090 Application 10/929,878 Technology Center 2100 ____________________ Before KALYAN K. DESHPANDE, LARRY J. HUME, and JOHN G. NEW, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 1, 2, 4-12 and 14-23. Appellants have previously canceled claims 3 and 13. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 The Real Party in Interest is International Business Machines Corporation. App. Br. 1. Appeal 2010-011090 Application 10/929,878 2 STATEMENT OF THE CASE 2 The Invention Appellants’ invention is directed to improved application server performance and availability and, more particularly, to techniques for monitoring the health of application servers. Spec. p. 1, ll. 5-7 (“Field of the Invention”). Exemplary Claims Claim 1 is an exemplary claim representing an aspect of the invention which is reproduced below (emphasis added): 1. A method of monitoring the health of one or more application servers, the method comprising the steps of: specifying one or more health classes, each of the one or more health classes defining one or more health policies for the one or more application servers, wherein each health policy comprises one or more health conditions to be monitored, a boundary health condition that will trigger a policy violation, a corrective action to be taken and a reaction mode; configuring one or more health sensors, wherein each health sensor is configured to correspond to a health condition, and wherein each health sensor operates independently to collect data; defining one or more targets of the one or more health classes; 2 Our decision refers to Appellants’ Appeal Brief (“App. Br.,” filed Feb. 25, 2010); Reply Brief (“Reply Br.,” filed Jul. 12, 2010); Examiner’s Answer (“Ans.,” mailed May 11, 2010); Final Office Action (“FOA,” mailed Jul. 10, 2009); and the original Specification (“Spec.,” filed Aug. 30, 2004). Appeal 2010-011090 Application 10/929,878 3 applying the one or more health policies to the one or more targets; monitoring at least one of the one or more health policies that have been applied to the one or more targets, wherein monitoring comprises using the one or more configured health sensors to collect data pertaining to the corresponding health condition; and detecting violations, if any, of the one or more health policies, wherein detecting violations comprises verifying the data collected against the boundary health condition. Prior Art The Examiner relies upon the following prior art in rejecting the claims on appeal: Gross US 7,100,079 B2 Aug. 29, 2006 Rejections on Appeal Claims 1, 2, and 4-23 stand rejected under 35 U.S.C. § 102(e) as being anticipated by Gross. Ans. 3. ISSUE Appellants argue (App. Br. 6-8; Reply Br. 2-7) that the Examiner’s rejection of claim 1 under 35 U.S.C. § 102(e) as being anticipated by Gross is in error. These contentions present us with the following issue: Issue: Did the Examiner err in finding that Gross discloses Appellants’ claimed method of monitoring the health of one or more application servers including, inter alia, the step of “configuring one or more health sensors, wherein each health sensor is configured to correspond to a Appeal 2010-011090 Application 10/929,878 4 health condition, and wherein each health sensor operates independently to collect data,” as recited in claim 1? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions with respect to claim 1, and we adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons and rebuttals set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Arguments. However, we highlight and address specific findings and arguments regarding claim 1 for emphasis as follows. Appellants’ contentions with respect to the claims on appeal may be summarized by the argument that Gross only teaches a single service processor that monitors all server performance parameters, and that this distinguishes over the claimed limitation of “one or more health sensors, wherein each health sensor is configured to correspond to a health condition, and wherein each health sensor operates independently to collect data,” as recited in claim 1. App. Br. 7 et seq. (emphasis added); see also Reply Br. 3-4. Appellants specifically contend that their argument does not focus on “how many sensors are used, but rather how each sensor (whether that be one or many in number) are [sic] configured.” Reply Br. 3. Appellants’ center their arguments on independent claim 1, but also state that the Appeal 2010-011090 Application 10/929,878 5 arguments are also applicable to the rejection of independent claims 20 and 22 (App. Br. 8), as well as dependent claims 2-19, 21, and 22. Id. Specifically, Appellants contend that Gross teaches that a single service processor (204) monitors all performance parameters (203) from a server (202), and that this is distinct from configuring one or more health sensors, each of which is configured to operate independently to collect data corresponding to a health condition, as claimed. App. Br. 7 (citing Gross Fig. 2). Appellants further contend that Gross does not disclose the claimed aspect of configuring one or more health sensors, wherein each health sensor is configured to correspond to a health condition, and wherein each health sensor operates independently to collect data, or the aspect of monitoring at least one of the one or more health policies that have been applied to the one or more targets, wherein monitoring comprises using the one or more configured health sensors to collect data pertaining to the corresponding health condition, as taught in claims 1, 20 and 22. App. Br. 8 (emphases in original). The Examiner responds by finding that the claim limitation in dispute in claim 1, recited in commensurate form in independent claims 20 and 22, i.e., “configuring one or more health sensors, wherein each health sensor is configured to correspond to a health condition, and wherein each health sensor operates independently to collect data,” only requires that the prior art disclose one health sensor, based upon the alternative phrasing of the Appeal 2010-011090 Application 10/929,878 6 limitation. Ans. 10 (emphases added). We agree with the Examiner, as discussed below. In this case, we agree with the Examiner because Appellants’ arguments are not commensurate with the scope of the claims. For example, we find that the recitation of “one or more health servers” is met by Gross’ disclosure of a single health server since the claims do not require a plurality of health servers. In addition, Appellants’ claims variously recite “each health sensor is configured to correspond to a health condition.” We find that such phrasing does not require that each health sensor be configured to correspond to only one health condition. Accordingly, Appellants have not provided sufficient evidence or argument to persuade us of any reversible error in the Examiner’s characterization of the cited art and related claim construction. Therefore, we sustain the Examiner’s anticipation rejection of independent claim 1. As Appellants have not provided separate arguments with respect to independent claims 20 and 22 (App. Br. 8), we similarly sustain the Examiner’s rejection of these claims under 35 U.S.C. § 102(e). Further, although Appellant raised additional arguments for patentability of various dependent claims, i.e., claims 7, 12, and 14-18, rejected on the same basis as claim 1 (App. Br. 8-11), we find that the Examiner has rebutted each of those arguments in the Answer by a preponderance of the evidence. Ans. 5-9 and 11-14. Therefore, we adopt the Examiner’s findings and underlying reasoning, which we incorporate herein by reference. Consequently, we have found no reversible error in the Examiner’s rejections of claims 1, 2, 4-12 and 14-23. Appeal 2010-011090 Application 10/929,878 7 CONCLUSION The Examiner did not err with respect to the anticipation rejection of claims 1, 2, 4-12 and 14-23 under 35 U.S.C. § 102(e), and the rejection is sustained. DECISION The decision of the Examiner to reject claims 1, 2, 4-12 and 14-23 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) (2011). AFFIRMED ELD