Ex Parte Black et al

Patent Trial and Appeal Board

Jun 21, 2016

12961231 (P.T.A.B. Jun. 21, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/961,231 12/06/2010
105727 7590 06/23/2016
Pillsbury Winthrop Shaw Pittman LLP (CA, Inc,)
PO Box 10500
McLean, VA 22102
Alvin Black
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.
072962-0389968 8779
EXAMINER
CHU, GABRIELL
ART UNIT PAPER NUMBER
2114
NOTIFICATION DATE DELIVERY MODE
06/23/2016 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):
Docket_IP@pillsbury law. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AL VIN BLACK,
DEBRA J. DANIELSON, and JACK ZITO
Appeal2014-006460
Application 12/961,231 1
Technology Center 2100
Before JEAN R. HOMERE, JOSEPH P. LENTIVECH, and
SHARON PENICK, Administrative Patent Judges.
PENICK, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 24 and 25. Claims 3 and 13 have been cancelled, and
claims 1, 2, 4--12, and 14--23 have been allowed. (Appeal Br. 2.) We have
jurisdiction under 35 U.S.C. § 6(b)(l).
We reverse.
Invention
Appellants' invention relates to diagnosing problems in information
technology systems. Multiple virtual parallel universes are created, each
cloned from one problematic information technology system. Various
1 Appellants identify CA, Inc. as the real party in interest. (Appeal Br. 2.)
Appeal2014-006460
Application 12/961,231
problem resolution steps may be performed on these virtualized parallel
universes to identify potential solutions to a problem experienced in the
problematic information technology system without disrupting the ongoing
functioning of the problematic system. When a potential solution is
identified in one of the virtualized parallel universes, the solution may then
be applied to the problematic information technology system to resolve the
problem associated therewith. (Abstract.)
Illustrative Claim
Claim 24, reproduced below with key Hrnitations emphasized~ is
illustrative:
24. A method of diagnosing an information technology system,
the method comprising:
receiving a diagnostic request that identifies a problem
associated with an information technology system having a
resource;
creating a plurality of parallel universes cloned from the
information technology system having the problem, wherein each
of the plurality of parallel universes comprises a virtualized
resource cloned from the resource in the information technology
system; and
applying a problem resolution operation to the virtualized
resource of each of the plurality of parallel universes, wherein
the problem resolution operation attempts to find a solution to
the problem associated with the information technology system
from the results of the problem resolution operations applied to
the plurality of parallel universes.
Rejection
The Examiner rejects claims 24 and 25 under 35 U.S.C. § 102(e) as
anticipated by Van Der Merwe et al. (US 2011/0161730 Al; pub. June 30,
2011) (hereinafter "Van Der Merwe"). (Final Action 2--4.)
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Application 12/961,231
Issue
Did the Examiner err in finding that the Van Der Merwe discloses
"creating a plurality of parallel universes cloned from the information
technology system having the problem" as recited in claim 24?
ANALYSIS
The Examiner finds Van Der Merwe discloses the creation of a
parallel universe cloned from the information technology system having the
problem in Van Der Merwe's disclosure of a system (VSP 138) with
constituent elements (VSNs 126, 128, 130) which are cloned to create VSP
140 with constituent elements VSNs 132, 134, and 136. (Final Act. 3, citing
Van Der Merwe i-f 48.) With respect to the creation of a plurality of parallel
universes, the Examiner cites Van Der Merwe' s disclosure that, in order to
localize the problem to a specific VSN of the system, "[t]he network
operator repeats the process of setting an appropriate breakpoint and
rerunning the cloned instance." (Id.; quoting Van Der Merwe i-f 52; Answer
5.) The Examiner explains that the plurality of cloned parallel universes is
disclosed in Van Der Merwe where a "single cloned instance" of the system
"is run multiple times to produce multiple such instances in time" "parallel
to the actual live network being debugged." (Answer 5.)
Appellants argue that Van Der Merwe does not disclose the creation
of a plurality of parallel universes, as required by claim 24. (Appeal Br. 5-
6.) Specifically, Appellants argue that the claim language requires that
more than one clone is created of a problematic system. (Id. at 6.)
Appellants contend that as multiple clones are required, and a single cloned
instance of the problematic system (as in Van Der Merwe) does not disclose
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Application 12/961,231
the required "plurality of parallel universes." (Id.; Reply at 2-3.)
Appellants argue:
There is no apparent disclosure in the cited portions of Van der
Merwe, and neither has the Examiner provided any technical
reasoning, as to in what way does a mere description of
rerunning a (same, single) cloned instance discloses or teaches
creating a plurality of parallel universes cloned from the
information technology system having the problem, wherein
each of the plurality of parallel universes comprises f!:
virtualized resource cloned from a particular resource in the
information technology system. In other words, rerunning a
cloned instance of an information technology system does not
unambiguously teach creating multiple cloned universes, each
including a virtualized resource cloned from a particular
resource in the information technology system.
(Reply Br. 3.) Appellants also argue that Van Der Merwe's rerunning of a
clone does not disclose a plurality of parallel universes as required by the
claim, but rather a plurality of serial universes. (Id. at 3.)
As an initial matter, we do not agree with Appellants that in order to
disclose the "plurality of parallel universes" the clones must exist in parallel
with each other. The broadest reasonable interpretation of the claim term
"parallel universes" in light of the specification requires that the cloned
"parallel universe" exists in parallel with the original system (as opposed to
in parallel with one or more "universe" clones). (See Spec. ,-r 1, where "one
or more virtualized parallel universes" (emphasis added) may be cloned
from an existing system without disrupting the problematic system.)
However, Appellants are correct that Van Der Merwe does not
disclose the creation of a plurality of cloned universes as required by the
claim. Appellants and the Examiner agree that Van Der Merwe discloses a
single cloned instance of a system. (Answer 5; Reply Br. 3.) While the
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Application 12/961,231
Examiner finds that the plurality of clones is disclosed in Van Der Merwe' s
rerunning of the clone, we find that Van Der Merwe' s setting of breakpoints
and running of the cloned instance from prior checkpoints when breakpoints
are reached do not disclose multiple cloned instances, but rather the use for
debugging (the claimed "applying a problem resolution operation," see Final
Action 3--4) of one cloned instance. (Van Der Merwe i-fi-150-52.)
Accordingly, we are persuaded the Examiner erred in finding
Van Der Merwe discloses the limitations as recited in independent claim 24
and commensurately recited in independent claim 25. Therefore, we reverse
the rejection of claims 24 and 25 under 35 U.S.C. § 102(e) as anticipated by
Van Der Merwe.
DECISION
We reverse the Examiner's decision rejecting claims 24 and 25 under
35 U.S.C. § 102(e) as anticipated by Van Der Merwe.
REVERSED
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