Ex Parte Barsness et al

Board of Patent Appeals and Interferences

Nov 29, 2010

10948774 (B.P.A.I. Nov. 29, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ERIC LAWRENCE BARSNESS, MAHDAD MAJD,
and JOHN MATTHEW SANTOSUOSSO
____________

Appeal 2009-006676
Application 10/948,774
Technology Center 2100
____________

Before JAY P. LUCAS, JOHN A. JEFFERY, and JAMES R. HUGHES,
Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL1
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-45, 48-57, and 60-69. Claims 46, 47, 58, 59, 70, and
71 have been canceled. App. Br. 2. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm-in-part.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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STATEMENT OF THE CASE
Appellants’ invention suspends or delays non-critical access to a
database during periods of high contention. See generally Spec. 2. Claim 1
is reproduced below with the key disputed limitations emphasized:
An apparatus comprising:
at least one processor;
a memory coupled to the at least one processor;
a database residing in the memory; and
a contention monitor residing in the memory and executed by the
at least one processor, the contention monitor periodically measuring
time for a database operation on the database and inhibiting at least
one non-critical access to the database when the time is above a
threshold while allowing at least one critical access to the database.

The Examiner relies on the following as evidence of unpatentability:
Schmidt US 2002/0133529 A1 Sept. 19, 2002
Rosenberger US 2004/0107219 A1 June 3, 2004
Tedesco US 7,058,622 B1 June 6, 2006
(filed Dec. 26, 2001)

Carlson US 7,085,786 B2 Aug. 1, 2006
(filed May 20, 2002)

THE REJECTIONS
1. The Examiner rejected claims 1, 2, 6-10, 12, 26, 27, 31-34, 45,
48, and 52-55 under 35 U.S.C. § 103(a) as unpatentable over Carlson and
Schmidt. Ans. 4-8.2

2 Throughout this opinion, we refer to (1) the Appeal Brief filed April 1,
2008; (2) the Examiner’s Answer mailed June 13, 2008; and (3) the Reply
Brief filed August 12, 2008.
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2. The Examiner rejected claims 3-5, 13-22, 24, 25, 28-30, 35-44,
49-51, 57, 60-67, and 69 under 35 U.S.C. § 103(a) as unpatentable over
Carlson, Schmidt, and Rosenberger. Ans. 8-11.
3. The Examiner rejected claims 11 and 56 under 35 U.S.C. § 103(a)
as unpatentable over Carlson, Schmidt, and Tedesco. Ans. 11-13.
4. The Examiner rejected claims 23 and 68 under 35 U.S.C. § 103(a)
as unpatentable over Carlson, Schmidt, Rosenberger, and Tedesco. Ans.
13-14.

THE OBVIOUSNESS REJECTION OVER CARLSON AND SCHMIDT
Regarding representative independent claim 1, the Examiner finds that
Carlson teaches all recited limitations, except for the contention monitor
inhibiting a non-critical access to the database when the time for data
operation is above a threshold. Ans. 4-5. The Examiner cites to Schmidt for
this missing recitation and to provide a motivation for combining the
references. Ans. 5-6.
Appellants argue that Schmidt does not teach inhibiting non-critical
access to a database, but rather just inhibiting a non-critical process. App.
Br. 9-10; Reply Br. 2-3. Additionally, Appellants assert that Schmidt lacks
the proper motivation to combine with Carlson as the Examiner suggests,
and teaches away from the invention. App. Br. 10-12; Reply Br. 3-5.
The issues before us, then, are as follows:

ISSUES
(1) Under § 103, has the Examiner erred in rejecting claim 1 by
finding that Carlson and Schmidt collectively would have taught or
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suggested a contention monitor that inhibits a non-critical access to a
database when the time for a database operation is above a threshold?
(2) Is the Examiner’s reason to combine Schmidt with Carlson
supported by articulated reasoning with some rational underpinning to
justify the Examiner’s obviousness conclusion?

FINDINGS OF FACT
1. Appellants provide examples of non-critical access to a database,
including: (1) low-priority application level functions; (2) any access to a
database that may be inhibited; and (3) database applications that cause
contention. Spec. 5:19-22; 6:1-2; 9:22-23.
2. Carlson’s system performs unscheduled database maintenance
when a database access time exceeds a threshold value. The database
maintenance steps include: (a) determining the access time for received
requests at step 610; (b) selecting a maximum access time limit (TACC-MAX)
at step 640; (c) determining the average access time (TACC-AVG(N)) at step
645; and (d) determining whether the average access time (TACC-AVG(N))
exceeds the threshold access time (TACC-MAX) at step 650. Carlson, col. 2, ll.
25-28, col. 8, ll. 32-39; col. 9, ll. 12-35; Fig. 6.
3. Carlson defines “access time” as “the time period required for the
database to return information in response to database query to identify one
or more physical/logical volumes based upon certain categorical search
information.” Carlson, col. 8, ll. 36-39.

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4. Carlson’s storage management program 310 within the host
system 390 can perform steps 610, 640, 645, and 650. Carlson, col. 4, ll.
12-27; col. 8, ll. 40-43; col. 9, ll. 13-15, 25-26,3 31-32; Figs. 3, 6.
5. Carlson notes that database maintenance includes rebuilding
database statistics, rebuilding database indices, and database
defragmentation. Carlson, col. 9, ll. 44-49.
6. Schmidt discusses an overloaded server running a word
processor, a web browser, and multimedia simulation, and teaches that
suspending active non-critical processes to release scarce system resources
would be beneficial. Schmidt, ¶ 0011.

Claims 1, 2, 10, 12, 26, 27, 45, and 48
ANALYSIS
Based on the record before us, we find no error in the Examiner’s
obviousness rejection of representative claim 1 which calls for, in pertinent
part, a contention monitor that inhibits a non-critical access to a database
when the time for a database operation is above a threshold. Although
providing examples of “non-critical accesses” in the Specification,
Appellants do not squarely define this term. See FF 1. We therefore
construe “non-critical access” in light of the disclosure to include any access

3 Carlson states that “a storage management program performs step 640.”
Carlson, col. 9, ll. 25-26. However, this paragraph discusses step 645, and
the previous paragraph discusses step 640. Compare Carlson, col. 9, ll. 22-
29 with col. 9, ll. 12-21. We therefore presume column 9, lines 25-26
intended to state that the storage management program performs step 645.
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to a database considered as not crucial to database operations. See In re Am.
Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (internal
citations omitted).
Carlson’s system performs database maintenance if a database access
time (e.g., TACC-AVG(N)) exceeds a threshold value (e.g.,TACC-MAX). FF 2.
Thus, Carlson teaches measuring a time period required for the database to
return information in response to database query (see FF 3) or a time for a
database operation as recited in claim 1. Carlson further teaches that a
storage management program 310 (i.e., a “monitor”) can perform this
function. See FF 4. Carlson therefore teaches a monitor that (1) measures a
time for a database operation, and (2) performs database maintenance when
the time is above a threshold. See FF 2-4.
Nonetheless, as the Examiner acknowledges (Ans. 5), Carlson does
not disclose the monitor (e.g., the storage management program 310) inhibits
access to the database during operations, including while performing
database maintenance. Schmidt was cited to cure this missing limitation.
See Ans. 5-6. Schmidt suspends different processes (e.g., word processing
and web browsing) when a system is overloaded to free up resources. See
FF 6. While Appellants contend that Schmidt does not teach inhibiting non-
critical access to a database (App. Br. 9-10), at least web browsing processes
would involve access-to-database operations. Moreover, the rejection is
based on Carlson and Schmidt collectively. As stated above, Carlson
discusses accessing a database and performing database operations. See FF
2-3. Attacking Schmidt individually (App. Br. 9-10; Reply Br. 2-3)
therefore does not demonstrate nonobviousness. See In re Merck & Co.,
Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
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Additionally, by combining Schmidt’s teachings with Carlson, the
combined system teaches a contention monitor that suspends or inhibits, at
least temporarily, a non-critical access to a database when the access time is
above a threshold as recited. When the access time exceeds a threshold,
Carlson attempts to run database maintenance, such as defragmentation
which cleans up a database and frees up resources. See FF 2, 3, and 5.
Carlson thus at least suggests that the database maintenance involves
cleaning up database resources when the time to perform a database
operation exceeds a threshold, and also inhibiting some database operations
as a result. See id. Schmidt provides an additional technique for releasing
or freeing up system resources by suspending non-critical processes, such as
web browsing, when the system is overloaded. See FF 6. Thus, armed with
Schmidt’s teaching, one skilled in the art would have recognized that
modifying Carlson’s database maintenance (FF 2-4) to include Schmidt’s
suspending processes teaching (FF 6) would assist in maintaining Carlson’s
database when the database operation time exceeds a threshold by releasing
database resources.
Contrary to Appellants’ assertions (App. Br. 10-11), we therefore find
there is some rational underpinning to support conclusion that Carlson and
Schmidt render claim 1 obvious. See KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007). Additionally, this combined apparatus predictably
yields no more than a contention monitor that inhibits non-critical access to
database when the database operation time exceeds a threshold as recited.
See id. Moreover, since Appellants have not shown that combining
Schmidt’s teaching with Carlson would be discouraged by an ordinarily
skilled artisan or somehow destroy Carlson’s principle of operation, we are
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not persuaded that Schmidt teaches away from its combination with Carlson
as the Examiner proposes. See In re Kahn, 441 F.3d 977, 990 (Fed. Cir.
2006).
For the above reasons, we will sustain the Examiner obviousness
rejection of: (1) independent claim 1; (2) independent claims 26 and 45
which recite commensurate limitations; and (3) dependent claims 2, 10, 12,
27, and 48 which are not particularly argued. See App. Br. 12.

Claims 6, 31, and 52
Regarding representative claim 6, the Examiner finds that Carlson and
Schmidt collectively teach application level programs, and states it is well
known in the art for applications to include functions that access a database
to retrieve data. See Ans. 6. Additionally, the Examiner finds that the
phrase “refusing at least one access to the database” is not defined in the
disclosure, and that Schmidt’s teaching of suspending processes corresponds
to the recitation of “refusing at least one access to a database by an
application level program” in claim 6. Ans. 6-7.
Appellants incorporate the arguments presented for claims 1. App.
Br. 12. Additionally, Appellants argue that the Examiner has not relied on
any teaching to support the rejection of claim 6. App. Br. 13; Reply Br. 5-6.
Also, Appellants contend that Schmidt’s teaching to suspend a process has
nothing to do with refusing access to a database by an application level
program, and that refusing or rejecting is not suspending. App. Br. 13;
Reply Br. 5-6. The issue before us, then, is as follows:

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ISSUE
Under § 103, has the Examiner erred in rejecting claim 6 by finding
that Carlson and Schmidt collectively would have taught or suggested
refusing an access to the database by an application level program?

ANALYSIS
Based on the record before us, we find no error in the Examiner’s
obviousness rejection of representative claim 6 which calls for the inhibiting
to comprise refusing an access to the database by an application level
program. Initially, we refer to our previous discussion of claim 1. We also
agree with the Examiner that Appellants have not defined the term “refuse”
(see generally Spec.), and will therefore construe this term with its ordinary
and customary meaning. See Phillips v. AWH Corp., 415 F.3d 1303, 1312
(Fed. Cir. 2005) (en banc) (internal citations omitted); see also Am. Acad.,
367 F.3d at 1364.
The ordinary and customary meaning of the term “refuse” is to reject
or deny.4 However, “refusing at least one access to the database by an
application level program” in claim 6 does not require the access to the
database be permanently refused. Schmidt’s suspending processes at least
temporarily refuses the processes by an application program. See FF 6.
Also, this rejection is based on both Carlson, which discloses accessing a
database, and Schmidt, which teaches suspending processes to free up
resources. See FF 2-6. We refer to our previous discussion relating to the
rational underpinning to combine Carlson and Schmidt to teach suspending

4 See Webster's Revised Unabridged Dictionary, G & C. Merriam Co., Noah
Porter, ed., 1913, available at http://machaut.uchicago.edu/websters.
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or refusing at least temporarily an access to a database by an application
level program. We therefore disagree with Appellants (see App. Br. 13) that
Schmidt’s teaching of suspending a process combined with Carlson does not
relate to the step of refusing an access to a database as recited in claim 6.
Appellants further assert that the Examiner did not rely on Carlson or
Schmidt in rejecting claim 6. App. Br. 13. We disagree. First, the
Examiner does cite to paragraphs eleven and thirty-eight of Schmidt. See
Ans. 6-7. Second, claim 6 depends from claim 1. All the Examiner’s cited
passages in Schmidt and Carlson in formulating the rejection of claim 1 are
also part of the rejection of claim 6. See Ans. 4-6.
For the above reasons, we will sustain the Examiner obviousness
rejection of: (1) claim 6, and (2) claims 31 and 52 which are not argued with
particularity. See App. Br. 13.

Claims 7-9, 32-34, and 53-55
Regarding claims 7-9, the Examiner (1) finds that Carlson and
Schmidt collectively teach application level programs, and (2) states it is
well known in the art for applications to include functions that access a
database to retrieve data. See Ans. 6. Additionally, the Examiner finds that
the phrases “suspending at least one access to the database,” “delaying at
least one access to the database,” and “suspending at least one function of
the database” in claims 7-9 are not defined in the disclosure, and that
Schmidt’s teaching of suspending processes corresponds to these recited
limitations. Ans. 6-7.

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Appellants incorporate the arguments presented for claims 1 and 6.
App. Br. 14-16. Additionally, Appellants argue that the Examiner has not
relied on any teaching to support the rejection of claims 7-9. App. Br. 14-
16; Reply Br. 6-7. Also, Appellants contend that Schmidt’s teaching to
suspend a process has nothing to with suspending at least one access to or
function of a database or delaying at least one access to a database. Id.
The issues before us, then, are as follows:

ISSUES
Under § 103, has the Examiner erred by finding that Carlson and
Schmidt collectively would have taught or suggested:
(a) suspending at least one access to the database by an application
level program as recited in claim 7;
(b) delaying at least one access to the database by an application level
program as recited in claim 8; and
(c) suspending at least one function of the database by an application
level program as recited in claim 9?

ANALYSIS
Based on the record before us, we find no error in the Examiner’s
obviousness rejection of claims 7-9. Initially, we refer to our previous
discussion of claim 1. Also, similar to claim 6, since Appellants have not
defined the term “delay” (see generally Spec.), we therefore construe this
term with its ordinary and customary meaning. See Am. Acad., 367 F.3d at
1364; see also Phillips, 415 F.3d at 1312. The ordinary and customary
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meaning of the term, “delay” is to put off or defer (i.e., postpone).5 Since
suspending a process also delays or postpones that process, Schmidt’s
suspending processes by an application level program (see FF 6) likewise
delays that process.
Additionally, this rejection is based on both Carlson, which discloses
accessing a database, and Schmidt, which teaches suspending processes. We
refer to our previous discussion relating to the rational underpinning to
combine Carlson and Schmidt to teach suspending or delaying an access to a
database by an application level program. We therefore disagree with
Appellants (see App. Br. 14-16) that Schmidt’s teaching of suspending a
process combined with Carlson does not relate to (a) suspending access to or
a function of a database as recited in claims 7 and 9, and (b) delaying an
access to the database as recited in claim 8.
Appellants further assert that the Examiner did not rely on Carlson or
Schmidt to reject claims 7-9. App. Br. 14-16. We disagree. First, the
Examiner does cite to paragraphs eleven and thirty-eight in Schmidt. See
Ans. 6-7. Second, claims 7-9 depend from claim 1. All the Examiner’s
cited passages in Schmidt and Carlson in formulating the rejection of claim
1 are also part of the rejection of claims 7-9. See Ans. 4-6.
For the above reasons, we will sustain the Examiner obviousness
rejection of: (1) claims 7-9, and (2) claims 32-34 and 53-55 which are not
argued with particularity. See App. Br. 14-16.

5 See Webster's Revised Unabridged Dictionary, G & C. Merriam Co., Noah
Porter, ed., 1913, available at http://machaut.uchicago.edu/websters
(defining “delay” in pertinent part as “[t]o put off; to defer; to procrastinate;
to prolong the time of . . . .”).

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THE OBVIOUSNESS REJECTION OVER CARLSON, SCHMIDT,
AND ROSENBERGER

Regarding claim 3, the Examiner finds that Carlson and Schmidt
collectively teach all recited limitations except for notifying a system
administrator to take action to inhibit the non-critical access to the database.
Ans. 8. The Examiner relies on Rosenberger to teach the missing limitation.
Ans. 8-9.
Appellants argue that Rosenberger relates to wireless network
monitoring and intrusion detection and provides only a general teaching that
a computer system can notify an administrator to take action. App. Br. 17.
The issue before us, then, is as follows:

ISSUE
Is the Examiner’s reason to combine the Schmidt/Carlson apparatus
with Rosenberger supported by articulated reasoning with some rational
underpinning to justify the Examiner’s obviousness conclusion?

FINDINGS OF FACT
7. Rosenberger’s system detects unauthorized wireless access point
on a computer network by including a security component. Upon detecting
an unknown, unauthorized wireless device within the system, Rosenberger’s
security component generates an alert, such as a notification to system
administrator. Rosenberger, ¶ 0009.
8. Appellants’ invention concerns managing database contention
and reducing delays for important data. Spec. 14:2-8.

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Claims 3, 28, and 49
ANALYSIS
Based on the record before us, we find error in the Examiner’s
obviousness rejection of claim 3 which calls for, in pertinent part, notifying
a system administrator to take action to inhibit the non-critical access to the
database. The Examiner cites to Rosenberger to teach this limitation. But
we find that Rosenberger is non-analogous art.
Carlson relates to a system that performs database maintenance. FF 2,
5. Schmidt teaches a solution to dealing with an overloaded computer
system (FF 6), and is therefore reasonably pertinent to Appellants’ problem
of dealing with data demand contentions. See FF 8. On the other hand,
Rosenberger relates to detecting unauthorized wireless devices within a
computer system. See FF 7. Thus, Rosenberger is not reasonably pertinent
to Appellants’ concern of dealing with contention and reducing delays. See
FF 8. Nor is Rosenberger from the same field of endeavor as Appellants’
invention (e.g., computer database management and data contention).
Rather, Rosenberger is concerned with detecting unauthorized activities.
See FF 7. We therefore find that Rosenberger is non-analogous art. See
Kahn, 441 F.3d at 987.
We agree with Appellants (App. Br. 17; Reply Br. 8) that, at best,
Rosenberger merely generally teaches notifying an administrator to take
action in certain situations. But contrary to the Examiner’s assertions (Ans.
8, 22), this mere general reference to notifying an administrator to take
action “on some situations” hardly suggests the particular notification recited
in claim 3—namely taking action to inhibit at least one non-critical access to
the database. Simply put, Rosenberger’s wireless device detection system
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has nothing to do with database access, let alone inhibiting non-critical
database accesses based on a particular temporal condition. On this record,
we fail to see a rational underpinning to combine the Schmidt/Carlson
system with Rosenberger to justify the Examiner’s obviousness conclusion
without impermissible hindsight. See KSR, 550 U.S. at 421.
We are persuaded that the Examiner erred in rejecting (1) claim 3, and
(2) claims 28 and 49 which recite commensurate limitations. Since this
issue is dispositive of our reversal of the Examiner’s rejection, we need not
address Appellants’ other arguments pertaining to the references’
combinability (App. Br. 17; Reply Br. 8).

Claims 4, 5, 29, 30, 50, and 51
For reasons similar to those discussed above regarding claim 3, we are
persuaded that the Examiner erred in rejecting claims 4, 5, 29, 30, 50, and 51
which recite commensurate limitations. Since this issue is dispositive of our
reversal of the Examiner’s rejection, we need not address Appellants’ other
arguments (App. Br. 17-18; Reply Br. 8-9).

Claims 13, 14, 22, 24, 35, 36, 57, and 60
Regarding claim 13, the Examiner relies on the discussion for claims
1 and 5. Ans. 9-10. According to the Examiner, Carlson6 teaches a storage

6 The Examiner’s Answer states “Rosenberg” (sic: Rosenberger) at column
4, lines 13-16. Ans. 10. However, this discussion matches the text of
Carlson; moreover, Rosenberger is numbered by paragraphs, not column and
line. On this evidence, we therefore presume the Examiner intended to
discuss Carlson in this context.
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management program that transfers data to a database to teach inserting data
into a database. Ans. 10.
Appellants incorporate their previous arguments, and additionally
argue that Rosenberger fails to provide a motivation to combine its teachings
with Carlson and Schmidt. App. Br. 19; Reply Br. 9-10.
The issue before us, then, is as follows:

ISSUE
Under § 103, has the Examiner erred in rejecting claim 13 by finding
that Carlson, Schmidt, and Rosenberger collectively would have taught or
suggested a contention monitor that measures a time for an INSERT
operation on the database?

FINDINGS OF FACT
9. Carlson teaches a storage management program that transfers data
to data storage. Carlson, col. 4, ll. 12-17.

ANALYSIS
Based on the record before us, we find error in the Examiner’s
obviousness rejection of claim 13 which calls for, in pertinent part, a
contention monitor that measures a time for an INSERT operation on the
database. The Examiner cites to Carlson to teach this limitation. See Ans.
10. However, Carlson falls short of teaching all the recited limitations.
Carlson teaches a storage management program that transfers data to
data storage. FF 9. While this transfer of data should be considered a write
or INSERT operation, Carlson does not teach this program is a contention
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monitor 310 that also measures the time to perform this INSERT operation
on the database as required by claim 13. Rather, Carlson discloses the
monitor (e.g., storage management program 310) measures the time required
for the database to return information in response to query or a READ
operation. See FF 2-4. Carlson therefore fails to teach a contention monitor
that measures the time for an INSERT operation on the database as recited
by claim 13. Moreover, Schmidt and Rosenberger fail to cure this
deficiency.
We are therefore persuaded that the Examiner erred in rejecting (1)
independent claim 13; (2) independent claim 57 which recites commensurate
limitations; (3) independent claim 35 which recites a similar limitation to
monitoring a performance level for the INSERT operation; and (4)
dependent claims 14, 22, 24, 36, and 60 for similar reasons. Since this issue
is dispositive of our reversal of the Examiner’s rejection, we need not
address Appellants’ other arguments (App. Br. 19; Reply Br. 9-10).

Claims 15-21, 25, 37-44, 61-67, and 69
For the reasons discussed above regarding claims 13, 35, and 57, we
are also persuaded that the Examiner erred in rejecting claims 15-21, 25,
37-44, 61-67, and 69. Additionally, regarding claims 15-17, 25, 37-39, 44,
61-63, and 69, we also refer to our previous discussion of claims 3-5. Since
this issue is dispositive of our reversal of the Examiner’s rejection, we need
not address Appellants’ other arguments (App. Br. 19-21).

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THE OBVIOUSNESS REJECTION OVER CARLSON, SCHMIDT,
AND TEDESCO

Regarding representative claim 11, the Examiner finds that Carlson
and Schmidt teach all the limitations except for flagging SQL statements
with a priority level and inhibiting SQL statements with low priority. Ans.
11-12. The Examiner relies on Tedesco to teach these missing limitations
and to provide a motivation to combine with Carlson and Schmidt. Ans. 12.
Appellants refer to the argument made for claim 1. App. Br. 21.
Additionally, Appellants contend that Tedesco fails to teach flagging the
query with a priority level such that when the measure time is above a
threshold execution is inhibited. App. Br. 21; Reply Br. 10.
The issue before us, then, is as follows:

ISSUE
Under § 103, has the Examiner erred in rejecting claim 11 by finding
that Carlson, Schmidt, and Tedesco collectively teach flagging SQL
statements with a priority level such that, when the measured time for the
database operation on the database is above a threshold, execution of a low
priority SQL statement is inhibited?

FINDINGS OF FACT
10. Tedesco screens queries and determines their impact on a
system’s resources, and rejects queries that surpass a threshold. Tedesco,
col. 2, ll. 18-28.

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11. Tedesco prioritizes and queues queries for a database based on
the priority of the query, and pauses lower priority queries so that the higher
priority queries may be processed and completed first. Flags are set to
determine whether to reject, allow, or edit queries. Tedesco, col. 4, ll.
36-41; col. 7, ll. 19-45; Fig. 6A.
12. Tedesco discloses the query parameters can be in a structured
query language (SQL). Tedesco, col. 3, ll. 52-56.

ANALYSIS
Based on the record before us, we find no error in the Examiner’s
obviousness rejection of claim 11 which calls for, in pertinent part, SQL
statements are flagged with a priority level such that, when the measured
time for the database operation on the database is above a threshold,
execution of a low priority SQL statement is inhibited. At the outset, we
repeat that attacking Tedesco individually (App. Br. 21) does not
demonstrate nonobviousness when the § 103 rejection is based on Carlson,
Schmidt, and Tedesco. See Merck, 800 F.2d at 1097. The Examiner’s
position is that when these references’ teachings are combined they
collectively teach or suggest the recitations in claim 11.
As stated above regarding claim 1, Carlson and Schmidt teach
inhibiting non-critical access to a database when the time is above a
threshold. Tedesco teaches a technique for determining when an access
(e.g., a query) to a database is non-critical by prioritizing queries to a
database, and pausing or inhibiting lower priority queries so that the higher
priority queries (e.g., critical access to a database) may be completed first.
See FF 10-11. This is achieved by setting flags for the queries and based on
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thresholds. See FF 10-11. Additionally, Tedesco’s queries can be in a SQL.
FF 12. Thus, armed with Tedesco’s teaching, one skilled in the art would
have recognized that modifying Carlson/Schmidt’s database maintenance
(FF 2-4) to include Tedesco’s process for flagging critical and non-critical
accesses (e.g., SQL queries or statements) to the database (see FF 10-11)
would assist in maintaining Carlson/Schmidt’s database when the database
operation time exceeds a threshold so that higher priority queries (e.g.,
critical access) may be processed before lower priority queries (e.g., non-
critical access). See FF 11. In this sense, an ordinarily skilled artisan would
have also recognized that SQL statements with low priority levels are
inhibited, at least temporarily. Contrary to Appellants’ assertions (App. Br.
21), we therefore find there is some rational underpinning to support
conclusion that Carlson, Schmidt, and Tedesco teach and suggest the
limitations in claim 13. See KSR, 550 U.S. at 418.
For the foregoing reasons, we are not persuaded that the Examiner
erred in rejecting (1) claim 11, and (2) claim 56 which recites commensurate
limitations.

THE OBVIOUSNESS REJECTION OVER CARLSON, SCHMIDT,
ROSENBERGER, AND TEDESCO

Since the Examiner has not shown that Tedesco cures the previously-
noted deficiencies regarding claims 13 and 57, we are also persuaded that
the Examiner erred in rejecting dependent claims 23 and 68. Since this issue
is dispositive of our reversal of the Examiner’s rejection, we need not
address Appellants’ other arguments (App. Br. 22).

Appeal 2009-006676
Application 10/948,774

21
CONCLUSION
Under § 103, the Examiner did not err in rejecting claims 1, 2, 6-12,
26, 27, 31-34, 45, 48, and 52-56, but erred in rejecting claims 3-5, 13-25,
28-30, 35-44, 49-51, 57, and 60-69.

ORDER
The Examiner’s decision rejecting claims 1-45, 48-57, and 60-69 is
affirmed-in-part. The rejections of claims 3 to 5, 13 to 25, 28 to 30, 35 to
44, 49 to 51, 57 and 60 to 69 are reversed. The rejections of the other claims
on appeal are 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).

AFFIRMED-IN-PART

pgc

Leslie J. Payne
IBM Corporation, Dept. 917
3605 Hwy. 52 North
Rochester, MN 55901-7829