Ex Parte Cherkasova et al

Patent Trial and Appeal Board

Jun 29, 2016

13346052 (P.T.A.B. Jun. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/346,052 01109/2012 LUDMILA CHERKASOVA
56436 7590 07/01/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82906179 6292
EXAMINER
ASHRAF, WASEEM
ART UNIT PAPER NUMBER
2455
NOTIFICATION DATE DELIVERY MODE
07/01/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LUDMILA CHERKASOV A and WENTING TANG
Appeal2014-008123
Application 13/346,052
Technology Center 2400
Before JOHN A. JEFFERY, ST. JOHN COURTENAY III, and
THU A. DANG, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-19. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
STATEMENT OF THE CASE
Appellants' invention evaluates a streaming media server's capacity to
support an expected workload of client accesses of streaming media files
from a site. See generally Abstract. Claim 1 is illustrative:
1. A method comprising:
receiving, into a capacity planning system including a
computer system, workload information representing an
expected workload of client accesses of streaming media files
from a site;
Appeal2014-008123
Application 13/346,052
said capacity planning system determining, for each of a
plurality of different server configurations, how many streaming
media servers of each of the different server configurations to be
included at said site for supporting the expected workload in a
target manner, wherein each of the streaming media servers is to
send streaming media files to clients, and wherein a first of the
plurality of different server configurations has a memory size or
disk storage configuration that differs from a memory size or disk
configuration, respectively, of a second of the plurality of
different server configurations; and
said capacity planning system selecting a type of load
balancing strategy from among a plurality of types of load
balancing strategies to use for the expected workload.
THE REJECTIONS
The Examiner rejected claims 1-9, 11-15, and 17-19 under 35 U.S.C.
§ 103(a) as unpatentable over Coleman (US 2004/0181794 Al; Sept. 16,
2004), Gupta (US 2002/0091722 Al; July 11, 2002), and Block (US
6,658,473 Bl; Dec. 2, 2003). Final Act. 4--19. 1
The Examiner rejected claims 10 and 16 under 35 U.S.C. § 103(a) as
unpatentable over Coleman, Gupta, Block, and Chase (US 2003/0005116
Al; Jan. 2, 2003).
RELATED APPEALS
Appellants inform us of four related appeals, two of which were
decided by different panels of this Board. See App. Br. 2; see also Ex parte
Cherkasova, No. 2009-002076 (BPAI Apr. 10, 2010); Ex parte Cherkasova,
1 Throughout this opinion, we refer to (1) the Final Rejection mailed
November 25, 2013 ("Final Act."); (2) the Appeal Brief filed April 24, 2014
("App. Br."); (3) the Examiner's Answer mailed May 20, 2014 ("Ans."); and
(4) the Reply Brief filed July 21, 2014 ("Reply Br.").
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Application 13/346,052
No. 2009-011665 (BPAI July 5, 2011). The applications for the other two
appeals issued as patents without a Board decision.
THE REJECTION OVER COLEMAN, GUPTA, AND BLOCK
Regarding claim 1, the Examiner finds that Coleman discloses, among
other things, a capacity planning system determining how many media
servers to include at a site for supporting an expected workload of client
accesses. Final Act. 5; Ans. 3. Although the Examiner acknowledges that
Coleman lacks streaming media servers, the Examiner cites Gupta (e.g., i-f 11)
for teaching this feature. Final Act. 5; Ans. 3--4. The Examiner also
acknowledges that the Coleman/Gupta system lacks (1) different server
memory size or disk storage configurations, and (2) selecting a load
balancing strategy from plural strategies, and cites Block for teaching these
features in concluding that the claim would have been obvious. Final Act. 6;
Ans. 4.
Appellants argue that the cited prior art does not determine how many
streaming media servers of each of different server configurations to include
at a site. App. Br. 6-9; Reply Br. 2-5. According to Appellants, Block
merely directs load to a selected server, but does not determine how many
streaming media servers of each different configuration to include at a site.
App. Br. 8. Appellants add that Coleman and Gupta are likewise deficient in
this regard because ( 1) Coleman's servers perform different functions and do
not stream media files, and (2) Gupta lacks the recited server quantity
determination. App. Br. 8-9; Reply Br. 3-5.
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Application 13/346,052
ISSUES
Under§ 103, has the Examiner erred by finding that Coleman, Gupta,
and Block collectively would have taught or suggested:
( 1) a capacity planning system determining, for each of plural
different server configurations, how many streaming servers to include at a
site, as recited in claim 1?
(2) workload information including identification of a number of
concurrent client accesses of streaming media files from the site over a time
period, as recited in claim 2?
ANALYSIS
Claims 1, 4-9, 11-15, and 17-19
On this record, we are unpersuaded of error in the Examiner's
rejection of claim 1. First, Appellants do not persuasively rebut the
Examiner's reliance on Coleman for determining a number of servers to
include at a site to support a workload. Final Act. 5 (citing Coleman i-fi-127,
30); Ans. 3. This finding is reasonable, for Coleman estimates whether a
current resource deployment is sufficient to satisfy a future workload level,
and if not, takes actions to satisfy a predicted future workload level
including determining how many servers to add. Coleman, Abstract; i127,
30. Notably, Coleman deploys various types of resources, including
different types of servers, and uses a predetermined number of each resource
to satisfy anticipated workload. Coleman i122.
Given these teachings, Coleman at least suggests a capacity planning
system determining, for each of plural different server configurations, how
many servers of each configuration to include at a site to support an
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Application 13/346,052
expected workload. Appellants' arguments regarding Coleman's lacking
streaming media servers (App. Br. 8-9; Reply Br. 3-5) are inapposite, for
Gupta-not Coleman-was cited for that teaching.
Although Coleman does not state explicitly that the servers stream
media files to clients, we see no error in the Examiner reliance on Gupta for
teaching streaming media servers, and that using them in Coleman's
capacity planning system would have been obvious. Ans. 3 (citing Gupta
i-fi-f 11, 14). Such an enhancement uses prior art elements predictably
according to their established functions-an obvious improvement. See KSR
Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007).
Nor are we persuaded of error in the Examiner's reliance on Block
merely to show that different server configurations can have different
memory size or disk storage configurations. Final Act. 6-7; Ans. 4 (citing
Block, col. 2, 11. 40-44, 58---62; col. 3, 11. 13-22). Given the different types
of server-based resources used to satisfy anticipated workloads in Coleman's
paragraph 22, providing server configurations with different memory size or
disk storage configurations would have been obvious in light of Block.
Appellants' arguments regarding the cited references' individual
shortcomings as they pertain to the recited determination (App. Br. 6-9;
Reply Br. 2-5) are unavailing where, as here, the rejection is based on the
cited references' collective teachings. See In re Merck & Co., Inc., 800 F .2d
1091, 1097 (Fed. Cir. 1986).
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 4--9, 11-15, and 17-19 not argued separately with
particularity.
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Application 13/346,052
Claims 2 and 3
We will not, however, sustain the Examiner's rejection of claim 2
reciting that the workload information includes identification of a number of
concurrent client accesses of streaming media files from the site over a time
period.
Paragraph 68 of Appellants' Specification refers to the term
"concurrent" as synonymous with "simultaneous." The term "simultaneous"
means "existing or occurring at the same time: exactly coincident."
MERRIAM- WEBSTER'S COLLEGIATE DICTIONARY 1094 (10th ed. 1993).
Therefore, concurrent client accesses must exist or occur at the same time-
even within a certain time period. Accord Spec. i-f 41 (noting that the
number of concurrent client accesses to a streaming media file can be
determined at any given point in time in a time period (e.g., 3 months to a
year) for which client accesses were logged). See also Spec. i-f 71 (noting
that 30 concurrent connections or client processes are in progress at time T1
in Figure 5); Fig. 6 (showing the number of concurrent sessions at particular
timestamps); Spec. i-f 72.
Turning to the rejection, the Examiner reasons that because Coleman
monitors transaction rate history over some time interval in paragraphs 33
and 34, any number of client accesses greater than one for some particular
time period will be concurrent for that time period. Final Act. 7; Ans. 5.
But this interpretation is unreasonable when construing the term
"concurrent" in light of the Specification. As Appellants indicate (App. Br.
9-10; Reply Br. 6-7), Coleman's accesses are not concurrent, for they do
not occur at the same time. Although Coleman's accesses occur during the
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same time period, the Examiner has not shown that they occur at the same
time within that period.
To the extent that the Examiner intends to rely on Gupta-not
Coleman-for teaching concurrent client accesses consistent with the
rejection of claim 15 which recites identifying a number of concurrent client
accesses (see Final Act. 16-17), no such position was articulated with
respect to claim 2, nor will we speculate in that regard here in the first
instance on appeal. But what we can say is that the Examiner's reliance on
Coleman for identifying concurrent client accesses in claim 2 is erroneous. 2
Therefore, we are persuaded that the Examiner erred in rejecting
claim 2, and dependent claim 3 for similar reasons.
THE OTHER OBVIOUSNESS REJECTION
We do, however, sustain the Examiner's obviousness rejection of
claims 10 and 16. Final Act. 19-20. Appellants reiterate similar arguments
2 We leave to the Examiner to consider whether claim 2 would have been
obvious not only over Gupta's teaching in connection with concurrent client
accesses cited in the rejection of claim 15 (see Fin. Act. 16-17 (citing Gupta
i-fi-f 15-17, 52, 78, 115-19)), but also Block's reference to joining a large
number of sessions "substantially concurrently" in column 13, lines 49 to 56.
Although we decline to address these teachings' potential relevance to the
patentability determination of claim 2 here in the first instance on appeal, we
leave that determination to Examiner. Although the Board is authorized to
reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn
when the Board elects not to do so. See Manual of Patent Examining
Procedure (MPEP) § 1213.02.
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made in connection with claim 1 that we find unpersuasive for the reasons
previously discussed.
CONCLUSION
Under§ 103, the Examiner did not err in rejecting claims 1and4--19,
but erred in rejecting claims 2 and 3.
DECISION
The Examiner's decision rejecting claims 1-20 is affirmed-in-part.
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-IN-PART
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