Ex Parte BIRKESTRAND et al

Patent Trial and Appeal Board

Jul 12, 2018

14169249 (P.T.A.B. Jul. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/169,249 01/31/2014
46797 7590 07/16/2018
Patterson & Sheridan, LLP
24 Greenway Plaza, Suite 1600
Houston, TX 77046
FIRST NAMED INVENTOR
Daniel C. BIRKESTRAND
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
ROC920130170US2 3219
EXAMINER
RAZA, MUHAMMAD A
ART UNIT PAPER NUMBER
2449
NOTIFICATION DATE DELIVERY MODE
07/16/2018 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):
Pair_eOfficeAction@pattersonsheridan.com
IBM@P ATTERSONSHERIDAN.COM
rociplaw@us.ibm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL C. BIRKESTRAND,
STEPHANIE L. JENSEN, and PAUL F. OLSEN 1
Appeal2018-000931
Application 14/169 ,2492
Technology Center 2400
Before ALLEN R. MacDONALD, JEREMY J. CURCURI, and
NABEEL U. KHAN, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants indicate the real party in interest is International Business
Machines Corporation, Armonk, New York. App. Br. 3.
2 Related Appeal 2018-000937 (U.S. Patent Application No. 14/160,313
filed January 21, 2014) is the parent application of this application on
appeal. App. Br. 4. This appeal and its related appeal are directed to the
same underlying invention and issues. These appeals are decided
concurrently.
Appeal2018-000931
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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-11. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Application 14/169,249 was filed January 31, 2014 as a continuation
of Application 14/160,313 filed January 21, 2014. 35 U.S.C. § 112 (AIA) is
applicable to any patent application filed on or after September 16, 2012.
Representative Claim
Representative claim 1 under appeal reads as follows ( emphasis,
formatting, and bracketed material added):
1. A computer-implemented method for providing
computing resources from a pool of a plurality of networked
computing systems for use by one or more consumers, the
method comprising:
[A.] determining, using at least one hardware
management controller coupled with the plurality of networked
computing systems and comprising a processor, that resource
usage of a consumer exceeds an initial amount of computing
resources allocated to the consumer from one or more first
computing systems from the pool, the initial amount of
computing resources associated with a first cost scheme of a
predetermined plurality of cost schemes;
[B.] after an elapse of a predetermined period of time,
and upon determining that the resource usage of the consumer
continues to exceed the initial amount of allocated computing
resources by an excess amount of resource usage:
[ i.] selecting, based on a predetermined billing
policy and the excess amount of resource usage, a second
cost scheme of the plurality of cost schemes to be applied
to the excess amount of resource usage;
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[ii.] identifying, using the processor, one or more
second computing systems from the pool having capacity
available under the second cost scheme to host at least a
portion of the excess amount of resource usage; and
[iii.] allocating an additional amount of computing
resources from at least one selected second computing
system to meet the excess amount of resource usage;
[C.] transferring at least the excess amount of resource
usage from the one or more first computing systems to the at
least one selected second computing system, wherein
transferring at least the excess amount of resource usage
comprises transmitting instructions from the at least one
hardware management controller to one of
[i.] (1) the one or more first computing systems
and the at least one selected second computing system,
and
[ii.] (2) one or more hypervisors associated with
the one or more first computing systems and the at least
one selected second computing system; and
[D.] determining, based on an associated cost of the
additional amount of computing resources, whether to
deallocate the additional amount of computing resources to the
pool, wherein the associated cost is determined based on the
second cost scheme applied to the excess amount of resource
usage.
Lappas et al.
References
US 2009/0182605 Al
Maclinovsky et al. US 2011/0078705 Al
Jackson US 2012/0179824 Al
Kirchhofer US 2013/0014107 Al
3
Jul. 16, 2009
Mar. 31, 2011
Jul. 12, 2012
Jan. 10,2013
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Application 14/169 ,249
Rejections
A.
The Examiner rejected claims 1-8, 10, and 11 on the ground of
nonstatutory obviousness-type double patenting as not being patentably
distinct from claims 1-20 of copending Application 14/160,313. Final
Act. 12.
"An appeal, when taken, is presumed to be taken from the rejection of
all claims under rejection." 37 C.F.R. § 4I.31(c). Because Appellants do
not identify any error in Examiner's rejection of claims 1-8, 10, and 11
under non-obviousness-type double patenting, we summarily sustain this
rejection in this proceeding. Except for our ultimate decision, we do not
discuss this rejection of these claims further herein.
B.
1. The Examiner rejected claims 1-11 under 35 U.S.C. § 112(a), as
failing to comply with the written description requirement. Final Act. 4---6.
We select claim 1 as representative. 3 Appellants argue separate
patentability for claim 6, but do not argue such for claims 2-5 and 7-11.
Except for our ultimate decision, we do not discuss this § 112(a) rejection of
claims 2-5 and 7-11 further herein.
2. The Examiner rejected claims 1-11 under 35 U.S.C. § 112(a), as
failing to comply with the written description requirement. Final Act. 6-10.
Appellants appeal and argue this second rejection under 35 U.S.C.
§ 112(a). App. Br. 14--15. However, because we do not find in the Answer
3 See 37 C.F.R. § 4I.37(c)(l)(iv).
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that the Examiner has addressed Appellants' arguments, and we are unable
to determine a basis for this second rejection that does not overlap with the
first rejection under 35 U.S.C. § 112(a), we summarily reverse this second
rejection under 35 U.S.C. § 112(a).
C.
The Examiner rejected claims 1-11 under 35 U.S.C. § 112(b), as
being indefinite. Final Act. 10-11.
We select claim 1 as representative. Appellants do not argue separate
patentability for claims 2-11. Except for our ultimate decision, we do not
discuss the § 112(b) rejection of claims 2-11 further herein.
D.
The Examiner rejected claims 1-11 under 35 U.S.C. § 101 "because
the claimed invention is directed to a judicial exception (i.e., a law of nature,
a natural phenomenon, or an abstract idea) without significantly more."
Final Act. 21. That is, because the claimed invention is directed to patent
ineligible subject matter.
We select claim 1 as representative. Appellants do not argue separate
patentability for claims 2-11. Except for our ultimate decision, we do not
discuss the§ 101 rejection of claims 2-11 further herein.
E.
The Examiner rejected claims 1-9 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Kirchhofer, Lappas, and Jackson.
We select claim 1 as representative. Appellants argue separate
patentability for claims 4--6. However, our decision as to the § 103 rejection
of claim 1 is determinative for all claims under this § 103 rejection.
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Therefore, except for our ultimate decision, we do not discuss the § 103
rejection of claims 2-9 further herein.
F.
The Examiner rejected claims 10 and 11 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Kirchhofer, Lappas, Jackson,
and Maclinovsky.
Appellants argue separate patentability for claim 10. However, our
decision as to the § 103 rejection of claim 1 is determinative for all claims
under this § 103 rejection. Therefore, except for our ultimate decision, we
do not discuss the § 103 rejection of claims 10 and 11 further herein.
Issues on Appeal
Did the Examiner err in rejecting representative independent claim 1
and dependent claim 6 under 35 U.S.C. § 112(a) as failing to comply with
the written description requirement?
Did the Examiner err in rejecting representative independent claim 1
under 35 U.S.C. § 112(b) as being indefinite?
Did the Examiner err in rejecting representative independent claim 1
under 35 U.S.C. § 101 as being directed to patent ineligible subject matter?
Did the Examiner err in rejecting representative independent claim 1
under 35 U.S.C. § 103 as being obvious?
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ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
Appeal Brief arguments that the Examiner has erred.
A. Section l 12(a) Analysis
1.
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 112(a).
First, Appellant submits that the "transmitting instructions from
at least one hardware management controller to one of (1) the
one or more first computing systems and the at least one selected
second computing system, and (2) one or more hypervisors
associated with the one or more first computing systems and the
at least one selected second computing system" of claim 1, and
discussed in FOA ,r 9, is supported by at least ,r,r [0060], [0061],
and [0077] of the Specification.
App. Br.12 ( emphasis added).
As to Appellants' above contention, we agree. In particular, we
conclude that paragraph 77 of Appellants' Specification provides sufficient
written description for this claim limitation.
2.
Appellants also raise the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 112(a).
Next, Appellant [sic] submits that the "determining, based
on an associated cost of the additional amount of computing
resources, whether to deallocate the additional amount of
computing resources to the pool, wherein the associated cost is
determined based on the second [cost] scheme applied to the [ J
excess amount of resource usage" of claim 1, and discussed in
FOA ,r 10 is supported by at least ,r,r [O 104] and [O 105] of the
Specification. The cited portion of the Specification describes a
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particular implementation in which the resource manager "bill[ s]
for costs that would have been incurred ... had the amount of
excess resource usage been billed under . . . the current cost
scheme." ,r [0104]. More specifically, the Specification
provides an example in which a "consumer purchased a fixed
amount of "utility" capacity" ( corresponding to a first cost
scheme) and exceeds the purchased limit by 600 cost
units. ,r [O 105]. A "computing system [is] selected to provide
"on/off' capacity for the excess resource usage" ( corresponding
to a second cost scheme). Id. "If the total cost threshold is set at
the amount that the resource provider would have billed the
consumer under the "utility" cost scheme (i.e., 600 cost units),
the resource manager may allow continued billing of the
consumer's excess resource usage up to 3 µP-days of "on/off'
( also equaling 600 cost units) before deallocating the resources
back to the system pool." Id. (emphasis added). One skilled in
the art would plainly understand this discussion as "determining,
based on an associated cost of the additional amount of
computing resources, whether to deallocate the additional
amount of computing resources to the pool, wherein the
associated cost is determined based on the second [cost] scheme
applied to the [] excess amount of resource usage".
App. Br. 13 (emphasis added).
We are unpersuaded by Appellants' above contention the Examiner
erred. We disagree with Appellants' assertions as to Specification
paragraphs 104--105. First, paragraph 104 states "[ t ]his threshold amount
may be chosen according to any number of considerations, but in one
embodiment may be chosen specifically to recover costs of the excess
resource usage under the current cost scheme." Emphasis added. In
Appellants' Specification, the phrase "current cost scheme" is used to refer
to the first cost scheme not the second cost scheme. "Even though a
consumer's resource usage may exceed the predefined limits of a current
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cost scheme, for various reasons the transition to a new cost scheme may not
be automatic and seamless." Spec. ,r 70.
Second, the example in paragraph 105 uses the "utility" cost scheme
as the first cost scheme and excess resource usage is under the "on/off' cost
scheme ( the second cost scheme). Paragraph 105 ( emphasis added) is
specific that
[i]f the total cost threshold is set at the amount that the resource
provider would have billed the consumer under the "utility" cost
scheme (i.e., 600 cost units) the resource manager may allow
continued billing of the consumer's excess resource usage up to
3 µP-days of "on/of' [ cost scheme] (also equaling 600 cost
units).
The threshold is determined under the "utility" cost scheme, and during
excess resource usage, expended under the "on/off' cost scheme. That is,
paragraph 105 provides support for -wherein the associated cost is
determined under the first cost scheme and is expended based on the second
cost scheme applied to the excess amount of resource usage-, but does not
provide written description for claim 1 's currently claimed closing
"wherein" limitation.
3.
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 6 under 35 U.S.C. § 112(a).
Next, Appellant [sic] submits that the . . . [ Appellants
quote the steps] of claim 6, and discussed in FOA ,r 11 is
supported by at least ,r,r [0104] and [0105] of the Specification.
More specifically, the implementation and example described in
the previous paragraph [ as to claim 1] also support these
limitations.
App. Br. 13.
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For the reasons discussed directly above as to claim 1, we are
unpersuaded the Examiner has erred in rejecting claim 6.
B. Section l 12(b) Analysis
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 112(b ).
[T]he Examiner suggests that "the functional significance of the
limitation 'wherein transferring at least the excess amount of
resource usage comprises transmitting instruction[ s] from the at
least one hardware management controller to one of (1) the one
or more first computing system and the at least one selected
second computing system, and (2) one or more hypervisors
associated with the one or more first computing systems and the
at least one selected second computing system' is ambiguous."
FOA, pp. 10, 11. Appellant [sic] submits that "functional
significance" is not the standard for determining indefiniteness.
In any event, claim 1 [is] not made indefinite by the limitation.
App. Br. 15.
As to Appellants' above contention, we agree with the points made by
Appellants. In the rejection the Examiner concluded "[i]t is unclear as to
what is being accomplished by transmitting the instructions and how the
aforementioned limitation further limits the scope of the claim." Final Act.
11. However, our review finds this portion of claim 1 (above step C) is
preceded by "transferring at least the excess amount of resource usage from
the one or more first computing systems to the at least one selected second
computing system" which explicitly states the "what" and "how" the
Examiner concludes are unclear.
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C. Section 101 Analysis
1. CaseLaw
Under 35 U.S.C. § 101, a patent may be obtained for "any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof." The Supreme Court has "long held that
this provision contains an important implicit exception: Laws of nature,
natural phenomena, and abstract ideas are not patentable." Alice Corp. Pty.
Ltd. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2354 (2014) (quoting Ass 'nfor
Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
The Supreme Court in Alice reiterated the two-step framework previously
set forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc.,
566 U.S. 66, 82-83 (2012), "for distinguishing patents that claim laws of
nature, natural phenomena, and abstract ideas from those that claim patent-
eligible applications of those concepts." Alice, 134 S. Ct. at 2355. The first
step in that analysis is to "determine whether the claims at issue are directed
to one of those patent-ineligible concepts," such as an abstract idea. For
example, a fundamental economic practice is an abstract idea:
[In Bilski v. Kappas], the Court grounded its conclusion that all
of the claims at issue were abstract ideas in the understanding
that risk hedging was a "'fundamental economic practice."' 561
U.S., at 611.
Alice, 134 S. Ct. at 2357.
The Court acknowledged in Mayo that "all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural phenomena,
or abstract ideas." Mayo, 566 U.S. at 71. We, therefore, look to whether the
claims focus on a specific means or method that improves the relevant
technology or are instead directed to a result or effect that itself is the
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abstract idea and merely invoke generic processes and machinery. See
Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016). If
the claims are not directed to an abstract idea, the inquiry ends. Otherwise,
the inquiry proceeds to the second step where the elements of the claims are
considered "individually and 'as an ordered combination' to determine
whether the additional elements 'transform the nature of the claim' into a
patent-eligible application." Alice, 134 S. Ct. at 2355 ( quoting Mayo, 566
U.S. at 79, 78).
2. Examiner's§ 101 Rejection -Alice/Mayo - Steps 1 and 2
Applying step 1 of the Alice/Mayo analysis, the Examiner concludes
claim 1 is directed to an abstract idea because:
[The claim] steps describe the concept of managing resources
based on a predetermined billing policy, which corresponds to
concepts identified as abstract ideas by the courts, such as an
abstract idea itself [Examiner cites to abstract ideas found in
SmartGene, buySAFE, and Freddie Mac, and the USPTO July
2015 Update: Subject Matter Eligibility].
Final Act. 23-24 ( emphasis omitted).
Applying step 2 of the Alice/Mayo analysis, the Examiner concludes
"[t]hese independent claims include insignificant pre-solution limitation(s)
[Examiner quotes above claim 1 step A] and post-solution limitation( s)
[Examiner quotes above claim 1 steps C and DJ." Final Act. 25-26
( emphasis added).
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3. Appellants ' § 101 Arguments
Appellants raise the following arguments in contending that the
Examiner erred in rejecting claim 1 as directed to non-statutory subject
matter.
[T]he rejection identifies the abstract idea as "managing
resources based on a predetermined billing policy", and
identifies the additional limitations as a processor and a
controller. The rejection then quotes the remaining limitations
of independent claim 1 verbatim, describing each as being
merely insignificant pre-solution limitations or post-solution
limitations.
App. Br. 19. As to the Alice/Mayo analysis at Step 1:
[T]he claim is not directed to an abstract idea but rather relates
to solving a real-world problem.
App. Br. 20. As to the Alice/Mayo analysis at Step 2:
[ Appellants quote the steps of claim 1 ], such a very specific and
practical application of computer-based control for a plurality of
networked computing systems providing distributed computing
resources is decidedly not an abstract idea ( e.g., a fundamental
economic principle, certain methods of organizing human
activities, an idea of itself, mathematical relationships/formulas,
etc.), and as such, no further analysis is required under Part 2 of
the two-part test laid out in Alice.
App. Br. 21 ( emphasis added). Also, as to the Alice/Mayo analysis at Step 2:
[B]y broadly classifying all remaining limitations of independent
claim 1 ( outside of the terms "processor" and "controller") as
being merely insignificant limitations, the Examiner has made
only a conclusory rejection and effectively ignores the entire
context of the claimed invention.
App. Br. 19--20.
We are unpersuaded by Appellants' argument "the claim is not
directed to an abstract idea but rather relates to solving a real-world
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problem." Appellants cite no basis for "solving a real-world problem" being
a test determinative of patent eligible subject matter. Also, many real-world
business problems and human interaction problems are solved by the
numerous examples of patent ineligible subject matter found in the cases
cited by the Examiner and in the USPTO July 2015 Update: Subject Matter
Eligibility and related USPTO subject matter eligibility guidance. We
conclude the Examiner has sufficiently shown that claim 1 is directed to the
abstract idea of "managing resources based on a predetermined billing
policy," i.e., the abstract ideas of managing resource usage and managing
cost/price determination.
Accordingly, we are also unpersuaded by Appellants' argument that
because the claim steps are "such a very specific and practical application"
then "no further analysis is required under Part 2 of the two-part test laid out
in Alice." App. Br. 21.
We agree, however, with Appellants' argument that the Examiner has
made an insufficient conclusory Alice/Mayo Step 2 analysis as to the
following claim 1 limitation:
transferring at least the excess amount of resource usage
comprises transmitting instructions from the at least one
hardware management controller to one of (1) the one or more
first computing systems and the at least one selected second
computing system, and (2) one or more hypervisors associated
with the one or more first computing systems and the at least one
selected second computing system.
The claim limitation is directed to restructuring the computing system
resources available to the user. Therefore, contrary to the Examiner's
conclusion, on this record we conclude this is more than "insignificant post-
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solution activity." Instead, a proper rejection under 35 U.S.C. § 101 requires
that the Examiner determine whether this is "well-understood, routine,
conventional activity, previously engaged in by those in the field." We
direct the Examiner's attention to the evidence in Kirchhofer at paragraph 5
where Kirchhofer provides a statement of what is "generally" known in the
field.
D. Section 103 Analysis
Appellants raise the following argument in contending4 that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a).
The Examiner concedes that Kirchhofer does not teach
" ... selecting, based on a predetermined billing policy and the
excess amount of resource usage, a second cost scheme ... to be
applied to the excess amount of resource usage," nor "identifying
capacity available under the second cost scheme to host [the]
excess amount of resource usage." FOA, p. 39. The Examiner
suggests that Lappas discloses these limitations, citing to
,r,r [0275], [0313], [0316], and [0015]. Id. at pp. 40-42.
Appellant [sic] notes that the rejection of claim 1 omits a
discussion of particular claim limitations, namely "identifying,
using the processor, one or more second computing systems from
the pool having capacity available under the [ selected] second
cost scheme to host at least a portion of the excess amount of
resource usage .... " Appellant [sic] submits that this limitation
is neither taught nor suggested by the references.
App. Br. 25-26 ( emphasis omitted).
While Lappas generally discloses charging overage rates
according to a overage charge parameter, and the automatic
restricting of services ( or stopping service or selecting the next
4 This contention is determinative as to all the § 103 rejections on appeal.
Therefore, Appellants' other contentions are not discussed herein.
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larger resource allotment plan) to protect users against excessive
overage billing, Lappas does not teach or suggest "identifying
... one or more second computing systems from the pool having
capacity available under the second cost scheme to host at least
a portion of the excess amount of resource usage ... ," as claimed
or otherwise.
App. Br. 27 ( emphasis omitted).
As to Appellants' above contention, we agree. Although we agree
with the Examiner's finding that (1) "Kirchhofer teaches 'identifying, using
the processor, one or more second computing systems from the pool having
capacity available to host at least a portion of the excess amount of resource
usage' - in paragraph [0068]" (Final Act. 36), we disagree with the
Examiner's finding that (2) "Lappas teaches 'identifying capacity available
under the second cost scheme to host excess amount of resource usage' - in
paragraph [0275]" (Final Act. 41 (emphasis omitted)). Rather, we find
Lappas at 274--275 teaches only "identifying ... the second cost scheme to
[ apply to] excess amount of resource usage."
We conclude, for the reasons discussed above as to claim 1 and
consistent with Appellants' argument, there is insufficient articulated
reasoning to support the Examiner's findings. Therefore, we conclude that
there is insufficient articulated reasoning to support the Examiner's final
conclusion that claim 1 would have been obvious to one of ordinary skill in
the art at the time of Appellants' invention.
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CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 1-11 as being
unpatentable under 35 U.S.C. § 112(a), as failing to comply with the written
description requirement.
(2) Appellants have established that the Examiner erred in rejecting
claims 1-11 under 35 U.S.C. § 112(b), as being indefinite.
(3) Appellants have established that the Examiner erred in rejecting
claims 1-11 under 35 U.S.C. § 101, as being directed to non-statutory
subject matter.
(4) Appellants have established that the Examiner erred in rejecting
claims 1-11 as being unpatentable under 35 U.S.C. § 103(a).
(5) Claims 1-11 are not patentable.
DECISION
The Examiner's provisional rejection of claims 1-8, 10, and 11 on
the ground of nonstatutory obviousness-type double patenting as being
unpatentable over claims 1-20 of copending Application No. 14/160,313
is affirmed.
The Examiner's rejection of claims 1-11 as being unpatentable under
35 U.S.C. § 112(a) is affirmed.
The Examiner's rejection of claims 1-11 as being unpatentable under
35 U.S.C. § 112(b) is reversed.
The Examiner's rejection of claims 1-11 under 35 U.S.C. § 101, as
being directed to non-statutory subject matter, is reversed.
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The Examiner's rejection of claims 1-11 as being unpatentable under
35 U.S.C. § 103(a) is reversed.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner's decision is affirmed. See
37 C.F.R. § 4I.50(a)(l).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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