Ex Parte Chen et al

Board of Patent Appeals and Interferences

Aug 14, 2012

10815233 (B.P.A.I. Aug. 14, 2012)

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.
10/815,233 03/31/2004 Yen-Fu Chen AUS920031048US1 8121
87173 7590 08/15/2012
Greg Goshorn, P.C.
9600 Escarpment
Suite 745-9
Austin, TX 78749
EXAMINER
JACOB, MARY C
ART UNIT PAPER NUMBER
2123
MAIL DATE DELIVERY MODE
08/15/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte YEN-FU CHEN, JOHN W. DUNSMOIR, ABHAY PRADHAN,
and HARI SHANKAR
________________

Appeal 2010-002528
Application 10/815,233
Technology Center 2100
________________

Before ALLEN R. MacDONALD, JASON V. MORGAN, and
MICHAEL R. ZECHER, Administrative Patent Judges.

MORGAN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-002528
Application 10/815,233

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STATEMENT OF THE CASE
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner‘s final
rejection of claims 1 – 8, 10 – 18, 20 – 25, and 27. Claims 9, 19, and 26 are
canceled. See Claims App‘x. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Invention
The invention provides an apparatus and method for demonstrating
the efficiency and effectiveness of a customer‘s information technology (IT)
system and applications operating in a shared IT, or electronic business on-
demand, environment. A test suite mimics hypothetical settings and
determines how the settings affect the allocation of resources. The calculated
allocation of resources is compared to one or more service level agreements
(SLAs) to determine compliance with a particular SLA. See Abstract.
Exemplary Claims
1. A method for predicting service level in a utility computing
environment having a dynamically allocated subset of
computing resources from a set of available computing
resources, the method comprising:
creating a resource profile corresponding to the
dynamically allocated subset of computing resources allocated
according to a service level agreement;
loading a workload profile representing a demand profile
for an enterprise;
simulating processing of the workload profile using the
resource profile to produce a service level result, wherein the
resource profile subset is modified during the simulation
according to the service level agreement; and
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generating a new service level agreement in the event the
resource profile cannot process the workload profile at an
expected service level corresponding to the service level
agreement, wherein the new service level agreement will
process the workload profile at the expected service level.
(Emphases added).
8. The method of claim 1, further comprising comparing the
workload profile to a second workload profile representing an
actual demand profile for a second client account;
wherein the simulating is based upon a result of the
comparison.
(Emphases added).
Rejection
The Examiner rejects claims 1 – 4, 7, 8, 10, 12 – 18, 20 – 25, and 27
under 35 U.S.C. § 103(a) as being unpatentable over Abhishek Chandra, et
al., An Online Optimization-Based Technique for Dynamic Resource
Allocation in GPS Servers, Tech. Rep. UM-CS-2002-030, Univ. of Mass.,
2002 (―Chandra‖) and M. D‘Arienzo, et al., Automatic SLA Management in
SLA-Aware Architecture, 10th Int‘l Conf. on Telecommunications, Feb. 23 –
March 1, 2003, vol. 2, pp. 1402 – 1406 (―D‘Arienzo‖). Ans. 4 – 9.
The Examiner rejects claims 5, 6, and 11 under 35 U.S.C. § 103(a) as
being unpatentable over Chandra and D‘Arienzo in combination with other
references. Ans. 9 – 13. However, Appellants do not present arguments for
these claims separately. App. Br. 18 – 20.
ISSUES
1. Did the Examiner err in finding that the combination of Chandra
and D‘Arienzo teaches or suggests ―generating a new service level
agreement,‖ as recited in claim 1?
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2. Did the Examiner err in finding that Chandra teaches or suggests
the claimed ―resource profile,‖ ―workload profile,‖ and ―demand profile,‖ of
claim 1?
3. Did the Examiner err in concluding that Chandra and D‘Arienzo are
analogous to the claimed invention?
4. Did the Examiner err in finding that Chandra teaches or suggests
―comparing the workload profile to a second workload profile . . . wherein
the simulating is based upon a result of the comparison,‖ as recited in claim
8?
ANALYSIS
Claim 1
The Examiner relies on D‘Arienzo‘s teaching of ―an automatic
mechanism for Service Level Agreement (SLA) management‖ as teaching or
suggesting ―generating a new service level agreement.‖ See Ans. 6 (citing,
e.g., D‘Arienzo‘s Abstract and p. 1405). Appellants contend that the
Examiner erred because while ―D‘Arienzo mentions that an agreement may
be re-negotiated or replaced . . . [D‘Arienzo does not] describe any
mechanism by which this can be accomplished.‖ App Br. 15. The Examiner
correctly points out that claim 1 does not ―set forth any ‗mechanism‘ by
which a service level agreement can be modified or generated anew.‖ Ans.
15. Therefore, Appellants‘ argument is not commensurate in scope with
claim 1, and therefore does not persuade us of error in the Examiner‘s
rejection.
Appellants argue that a relied upon passaged in Chandra fails to teach
or suggest a ―resource profile.‖ See App Br. 16 (citing Chandra 1, col. 2, ll.
18 – 29). However, the Examiner properly finds that Chandra, which states
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that ―[a]n alternative approach is to allocate resources to applications‖
(Chandra 1), teaches or suggests creating a resource profile (i.e., how and
what resources are allocated). See Ans. 18.
Appellants also argue that the same passage of Chandra relied upon
by the Examiner to teach or suggest a ―resource profile‖ is also used to teach
or suggest a ―workload profile‖ and a ―demand profile.‖ See App. Br. 16.
Appellants submit that this passage ―cannot simultaneously stand for all
three.‖ Id. However, the Examiner correctly notes that the cited passage was
not relied upon to teach or suggest a ―workload profile‖ or a ―demand
profile.‖ See Ans. 18; see also Ans. 5 and Fin. Rej. 3 – 4. Therefore,
Appellants‘ argument is not responsive to, and not persuasive of error in, the
Examiner‘s rejection.
Appellants further contend that it would not have been obvious to an
artisan of ordinary skill to combine the teachings and suggestions of
Chandra and D‘Arienzo because ―Chandra addresses resource allocation in a
shared computing environment,‖ rather than generating a service level
agreement, and thus ―D‘Arienzo is directed to an entirely different
technology than Chandra.‖ See App. Br. 15. However, we do not agree that
D‘Arienzo and Chandra are non-analogous to the claimed invention. As the
Examiner correctly points out, Chandra is directed to techniques to provide
―guarantees‖ to applications running on shared data centers. See Ans. 15
(citing, e.g., Chandra Abstract). We agree with the Examiner that these
―guarantees‖ are service level agreements. Id. Thus, we conclude that
Chandra, which relates to providing resources to satisfy a service level
agreement (Abstract), and D‘Arienzo, which relates to service level
agreement management (Abstract), are both analogous to the claimed
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invention because each reference falls within the same field of endeavor as
the claimed invention—the field of service level agreements. Therefore, the
Examiner did not error in concluding that Chandra and D‘Arienzo are
analogous to the claimed invention. See Ans. 16 – 18.
Accordingly, we sustain the Examiner‘s 35 U.S.C. § 103(a) rejection
of claim 1, and of claims 2 – 7, 10 – 12, 14 – 17, 22 – 24, and 27, which are
not argued separately. See App. Br. 17 – 20.
Claim 8
Claim 8 recites ―comparing the workload profile to a second workload
profile . . . wherein the simulating is based upon a result of the comparison.‖
Appellants argue that Chandra does not teach or suggest using a comparison
of workload profiles as a basis of a simulation. See App. Br. 17. In response,
the Examiner finds that Chandra describes ―workloads . . . [that] are used in
the simulation to determine the allocation of resources and system discontent
over time.‖ Ans. 21. However, the claim recites using the result of the
comparison of the workload profiles, not the workload profiles themselves,
in the simulating step of parent claim 1. The Examiner does not show that
Chandra teaches or suggests simulating based on a result of a workload
profile comparison or that D‘Arienzo cures this deficiency.
Accordingly, we do not sustain the Examiner‘s 35 U.S.C. § 103(a)
rejection of claim 8, and of claims 18 and 25, which contain similar
recitations.
DECISION
The Examiner‘s decision to reject claims 1 – 7, 10 – 17, 20 – 24, and
27 under 35 U.S.C. § 103(a) is affirmed.
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The Examiner‘s decision to reject claims 8, 18, and 25 under 35
U.S.C. § 103(a) is reversed.
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

ELD