Ex Parte Barr et al

Board of Patent Appeals and Interferences

Apr 23, 2010

10742495 (B.P.A.I. Apr. 23, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ANDREW HARVEY BARR, KIRK MICAHEL BRESNIKER,
and RICARDO ESPINOZA-IBARRA
____________________

Appeal 2009-005530
Application 10/742,495
Technology Center 2100
____________________

Decided: April 23, 2010
____________________

Before JOHN A. JEFFERY, LEE E. BARRETT, and THU A. DANG,
Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-005530
Application 10/742,495

I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 (2002) from a final rejection
of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b) (2008).
We AFFIRM.

A. INVENTION
According to Appellants, the invention generally relates to rack
equipment management (Spec. 1, l. 6).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary and is reproduced below:
1. An equipment rack load modulation method
comprising:

determining an equipment rack aggregate thermal and
power budget;

allocating said aggregate thermal and power budget
based upon rack equipment loaded in said equipment rack; and

operating said rack equipment in accordance with said
allocation of said aggregate thermal and power budget.

C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Chu 6,934,864 B2 Aug. 23, 2005
Staiger 6,952,782 B2 Oct. 4, 2005

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Claims 1-20 stand rejected under 35 U.S.C. § 103(a) over the
teachings of Chu in view of Staiger.

II. ISSUE
Did the Examiner err in finding that the combination of Chu in view
of Staiger would have taught or suggested “determining an equipment rack
aggregate thermal and power budget” (claim 1), as Appellants contend? In
particular, the issue turns on whether combining Chu’s teachings of using a
thermal controller to monitor and control the environmental operating
conditions with Staiger’s teachings of controlling and managing power
consumption would have suggested the features of claim 1.

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Chu
1. Chu discloses a plurality of independent appliance servers such as
dedicated independent electronic devices with embedded applications
that separate the various computing workloads and which may be
remotely managed (col. 3, ll. 2-8; Fig. 1), wherein the appliance
servers include a first appliance server such as a dedicated Web
server, a second appliance server such as a storage server, and a third
appliance server which functions as a load balancing server (id. at ll.
8-11).
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2. The appliance server (the plurality of appliance servers) includes a
thermal controller that is utilized to monitor and control the
environmental operating condition of the appliance server (id. at ll.
42-48).
3. Server blades can be made to power off under thermal stress
conditions while the others remain operational, wherein, with some
form of load balancing in front of them, the requests may be evenly
distributed across of the server blades (col. 6, l. 62 to col. 7, l. 1).
4. If the first group of power reductions is not sufficient to reduce the
temperature into compliance, another group can be defined by
assigning different priority values to the server blades (col. 7, ll. 4-7).
Staiger
5. Staiger discloses dynamically controlling and managing the power
consumption and performance of energy consuming elements of a
system (Abstract).

IV. PRINCIPLES OF LAW
Section 103 forbids issuance of a patent when “the differences
between the subject matter sought to be patented and the prior art are
such that the subject matter as a whole would have been obvious at
the time the invention was made to a person having ordinary skill in
the art to which said subject matter pertains.”

KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007).
In KSR, the Supreme Court emphasized "the need for caution in
granting a patent based on the combination of elements found in the prior
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art," and discussed circumstances in which a patent might be determined to
be obvious. Id. at 415 (citing Graham v. John Deere Co., 383 U.S. 1, 12
(1966)). The Court reaffirmed principles based on its precedent that "[t]he
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results." Id. at 416.
The Court noted that “[c]ommon sense teaches . . . that familiar items may
have obvious uses beyond their primary purposes, and in many cases a
person of ordinary skill will be able to fit the teachings of multiple patents
together like pieces of a puzzle.” Id. at 420. “A person of ordinary skill is
also a person of ordinary creativity, not an automaton.” Id. at 421.
The Federal Circuit recognized that "[a]n obviousness determination
is not the result of a rigid formula disassociated from the consideration of the
facts of a case. Indeed, the common sense of those skilled in the art
demonstrates why some combinations would have been obvious where
others would not." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d
1157, 1161 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 416). The Federal
Circuit relied in part on the fact that Leapfrog had presented no evidence that
the inclusion of a reader in the combined device was "uniquely challenging
or difficult for one of ordinary skill in the art” or “represented an unobvious
step over the prior art." Id. at 1162 (citing KSR, 550 U.S. at 418).
One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).

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V. ANALYSIS
Appellants contend that “Chu discloses that the thermal management
of the appliance server is based solely on the determination of thermal
conditions within the device and controlling power to locations in the device
based solely on the thermal conditions” (App. Br. 9). Accordingly,
Appellants contend that “Chu does not teach, describe or suggest that the
operation of appliance server 200 is at all based on the use of an ‘aggregate
thermal and power budget’ (emphasis added) as claimed” (App. Br. 9-10).
Though Appellants admit that Staiger discloses “the dynamic control
and management of the performance and the power consumption of energy
consuming elements within an electronic system” (App. Br. 10), Appellants
contend that such control and management “is independent of thermal
conditions” (id.). Therefore, Appellants contend that “Staiger does not
teach, describe or suggest a ‘power budget’ as claimed” but instead
“describes an indivisible performance/power convergence method” (App.
Br. 12)
However, the Examiner finds that “Chu and Staiger, each provides a
well known technology in managing operations of a system: Chu reference
considers a system’s thermal conditions to manage the operation; Staiger
reference considers optimizing power consumption and performance
requirements in a system” (Ans. 6). The Examiner concludes that “[s]ince
the references, Chu and Staiger, both can be applied to optimize the
operation of electronic systems using either ‘thermal conditions’ or ‘power
consumption’, the examiner does not see the reason why it is not able to
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combine the two management systems to optimize the performance of an
electronic system” (id.). In particular, the Examiner concludes that “[t]he
motivation has been listed after the citation of Staiger reference, ‘for the
purpose of controlling and managing the power consumption and
performance of energy consuming elements of a system to save energy while
still providing the optimal system performance as required’” (Ans. 7).
Thus, the issue we address on appeal is whether the combination of
Chu and Staiger would have taught or suggested “determining an equipment
rack aggregate thermal and power budget” (claim 1), as claimed. In
particular, we address whether combining Chu’s teachings of using a
thermal controller to monitor and control the environmental operating
conditions with Staiger’s teachings of controlling and managing power
consumption would have suggested the features of claim 1.
By contending that “Chu does not teach, describe or suggest that the
operation of appliance server 200 is at all based on the use of an ‘aggregate
thermal and power budget’ (emphasis added) as claimed” (App. Br. 9-10),
and that Staiger’s control and management “is independent of thermal
conditions” (App. Br. 10), Appellants appear to be arguing that individually,
neither Chu nor Staiger discloses the features of claim 1. However, the
Examiner rejects claim 1 over the combined teachings of Chu and Staiger,
and what the combined teachings would have suggested to one of ordinary
skill in the art. One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.
See Merck, 800 F.2d at 1097.
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Claim 1 does not place any limitation on what “an equipment rack
aggregate thermal and power budget” is to mean, include or represent.
Accordingly, we interpret the term broadly but reasonably according to its
ordinary meaning as a budget relating to the combined thermal and power
considerations for an equipment rack.
Chu discloses a plurality of dedicated independent appliance servers
with embedded applications that separate the various computing workloads
(FF 1), wherein a thermal controller is utilized to monitor and control the
environmental operating condition (FF 2). We agree with the Examiner’s
finding that Chu “considers a system’s thermal conditions to manage the
operation” (Ans. 6). In fact, even Appellants admit that Chu discloses
thermal management of the appliance server based on the determination of
thermal conditions within the device (App. Br. 9). Accordingly, one skilled
in the art would have understood Chu’s application server to be an
equipment rack, and thus, would have understood Chu’s method of
monitoring and controlling the environmental operating condition of the
application server using a thermal controller as an equipment rack load
modulation method comprising determining an equipment rack thermal
budget.
Chu also discloses controlling the powering of server blades in the
application servers (FF 3), wherein the controlling step includes determining
whether power reduction is sufficient to reduce the temperature into
compliance (FF 4). Thus, the artisan would have understood Chu to also
teach determining an equipment rack power budget. Accordingly, we
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disagree with Appellants’ contention that the operation of appliance server
200 is not also based on the power budget (App. Br. 9-10).
Nevertheless, Staiger discloses dynamically controlling and managing
the power consumption and performance of energy consuming elements of a
system (FF 5). We agree with the Examiner that Staiger “considers
optimizing power consumption and performance requirements in a system”
(Ans. 6). In fact, Appellants even admit that Staiger discloses “the dynamic
control and management of the performance and the power consumption of
energy consuming elements within an electronic system” (App. Br. 10).
Thus, the skilled artisan would have understood Staiger to also disclose
determining an equipment rack power budget.
We agree with the Examiner’s conclusion that “[i]t would have been
obvious to a person of ordinary skill in the art at the time of applicant’s
invention to modify the teaching of Chu to include ‘using both power and
thermal budget’” (Ans. 4). As the Examiner concludes, “Chu and Staiger,
each provides a well known technology in managing operations of a system”
(Ans. 6).
Though Appellants also contend that “there is no suggestion or
motivation to combine the teachings of Chu and Staiger” (App. Br. 13), and
that “the suggested modification would render Chu inoperable for its
intended purpose” (App. Br. 16), we agree with the Examiner’s conclusion
that “the references, Chu and Staiger, both can be applied to optimize the
operation of electronic systems using either ‘thermal conditions’ or ‘power
consumption’” (Ans. 6). As the Examiner concludes, “[t]he motivation has
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been listed after the citation of Staiger reference, ‘for the purpose of
controlling and managing the power consumption and performance of
energy consuming elements of a system to save energy while still providing
the optimal system performance as required’” (Ans. 7).
Since Staiger discloses determining an equipment rack power budget,
we conclude that the combination of one known element (Staiger’s
determining of an equipment rack power budget) with another (Chu’s
determining of an equipment rack thermal budget) would have yielded
predictable results to one of ordinary skill in the art at the time of the
invention. That is, we find that determining an equipment rack power
budget as taught by Staiger in addition to Chu’s determining of an
equipment rack thermal budget is no more than a simple arrangement of old
elements, with each performing the same function it had been known to
perform, yielding no more than one would expect from such an arrangement.
See KSR, 550 U.S. at 417.
The skilled artisan would “be able to fit the teachings of multiple
patents together like pieces of a puzzle” since the skilled artisan is “a person
of ordinary creativity, not an automaton.” Id. at 420-21. Appellants have
presented no evidence that combining Staiger’s teaching of equipment rack
power budget to the equipment rack thermal budget of Chu was “uniquely
challenging or difficult for one of ordinary skill in the art” or “represented an
unobvious step over the prior art.” See Leapfrog, 485 F.3d at 1162 (citing
KSR, 550 U.S. at 418-19).
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Accordingly, we find that the Examiner did not err in rejecting
independent claim 1 and independent claims 8 and 14 falling therewith
under 35 U.S.C. § 103(a). Appellants do not provide separate arguments
with respect to the rejection of claims 2-7, 9-13, and 15-20 depending from
claims 1, 8 and 14, respectively. Therefore, we find that the Examiner also
did not err in rejecting dependent claims 2-7, 9-13, and 15-20 under 35
U.S.C. § 103(a).

VI. CONCLUSIONS OF LAW
(1) The Examiner did not err in concluding that claims 1-20 are
unpatentable under 35 U.S.C. § 103(a) over the teachings of Chu in view of
Staiger.
(2) Claims 1-20 are not patentable.

VII. DECISION
We affirm the Examiner’s rejection of claims 1-20 under 35 U.S.C.
§ 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

Appeal 2009-005530
Application 10/742,495

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