Ex Parte Dudek et al

Patent Trial and Appeal Board

Mar 18, 2016

13102538 (P.T.A.B. Mar. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/102,538 05/06/2011
127893 7590 03/18/2016
Streets & Steele - Lenovo (Singapore) Pte, Ltd,
13100 Wortham Center Drive
Suite 245
Houston, TX 77065
FIRST NAMED INVENTOR
Clark A. Dudek
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.
XRPS9201l0008US 1 7327
EXAMINER
SHIN, KYUNG H
ART UNIT PAPER NUMBER
2443
MAILDATE DELIVERY MODE
03/18/2016 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 PATENT TRIAL AND APPEAL BOARD
Ex parte CLARK A. DUDEK, PHILLIP D. JONES,
DAVID B. ROBERTS, ADRIAN X. RODRIGUEZ,
IAN C. TEWKSBURY, and PING ZHOU
Appeal2014-002893
Application 13/102,538
Technology Center 2400
Before ROBERT E. NAPPI, JEFFREY A. STEPHENS, and
NATHAN A. ENGELS, Administrative Patent Judges.
NAPPI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 10 through 18.
We affirm and enter a new rejection.
INVENTION
Appellants' invention relates to a system in which a first compute
node broadcasts a workload bid request to a plurality of compute nodes,
wherein the workload bid request includes workload parameters
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Application 13/102,538
characterizing the workload. See Abstract. Claim l 0 is illustrative of the
invention and reproduced below:
10. A computer program product including computer
usable program code embodied on a tangible computer readable
storage medium for managing workload in a computer system,
the computer program product comprising:
computer usable program code for a first compute node
broadcasting a workload bid request to a plurality of compute
nodes, wherein the workload bid request includes workload
parameters characterizing the workload;
computer usable program code for the plurality of
compute nodes each receiving the workload bid request from
the first compute node, wherein each of the plurality of
compute nodes uses the workload parameters included in the
workload bid request to calculate a cost of running the
workload;
computer usable program code for one or more
individual compute nodes within the plurality of compute nodes
each sending a workload bid to the first compute node, wherein
each workload bid includes the cost of running the workload on
the individual compute node sending the workload bid; and
computer usable program code for the first compute node
receiving each workload bid and using each workload bid to
select a target compute node to run the workload, wherein the
target compute node is selected from the one or more individual
compute nodes and the first compute node.
REJECTIONS AT ISSUE
The Examiner has provisionally rejected claims 10 through 18 based
upon non-statutory obviousness double patenting over claims 1 through 9 of
copending application 13/541,474. Answer 4--5. 1
1 Throughout this Opinion we refer to the Appeal Brief (filed August 23,
2013) ("Appeal Br."), the Examiner's Answer (mailed Oct. 22, 2013)
("Answer"), and the Specification (filed July 5, 2012) ("Spec.").
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Application 13/102,538
The Examiner has rejected claims 10 through 18 under 35 U.S.C.
§ 101 as directed to non-statutory subject matter. Answer 5---6.
The Examiner has rejected claims 10 through 15, and 18 under 35
U.S.C. § 102(b) as anticipated by Fellenstein et al. (US 2008/0306866 Al,
published Dec. 11, 2008). Answer 7-10.
The Examiner has rejected claims 16 and 17 under 35 U.S.C. § 103(a)
as anticipated by Fellenstein and Mirzakhanyan (US 2010/00325017 Al,
published Dec. 23, 2010). Answer 10-12.
ISSUES
Double Patenting Rejection
Appellants argue on pages 5 and 6 of the Appeal Brief that the
Examiner's double patenting rejection is in error. We decline to reach the
provisional rejection as the issues are not ripe for decision. See Ex parte
Moncla, 95 USPQ2d 1884, 1885 (BPAI 2010) (precedential).
Rejection under 35 U.S.C. § 101
Appellants argue on pages 6 and 7 of the Appeal Brief that the
Examiner's rejection under 35 U.S.C. § 101 is in error. These arguments
present us with the issue: Did the Examiner err in finding that claim 10 is
broad enough to encompass a transitory signal?
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Application 13/102,538
Rejection under 35 U.S.C. § 102
Claim 10
Appellants argue on pages 8 through 10 of the Appeal Brief that the
Examiner's rejection of claim 10 is in error. These arguments present us
with the issue:
1) Did the Examiner err in finding that Fellenstein teaches a workload
bid request includes workload parameters characterizing the
workload?
2) Did the Examiner err in finding that Fellenstein teaches a target
compute node is selected from the one or more individual compute
nodes and the first compute nodes?
Claim 12
Appellants argue on page 11 of the Appeal Brief that the Examiner's
rejection of claim 12 is in error. These arguments present us with the issue:
3) Did the Examiner err in finding that Fellenstein teaches the first
compute node target selecting the first compute node to run the bid
workload?
Claim 13
Appellants argue on pages 11 and 12 of the Appeal Brief that the
Examiner's rejection of claim 13 is in error. These arguments present us
with the issue:
4) Did the Examiner err in finding that F ellenstein teaches that the
workload bid includes a cost function that the plurality of compute
nodes used to calculate the cost of running the workload?
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Application 13/102,538
Claim 18
Appellants argue on page 12 of the Appeal Brief that the Examiner's
rejection of claim 18 is in error. These arguments present us with the issue:
5) Did the Examiner err in finding that F ellenstein teaches that the
nodes, other than the target compute node, receiving the cost
included in the workload bid of the target compute node and
tracking the cost and workload parameters?
Rejection under 35 U.S.C. § 103
Claim 17
Appellants argue on page 15 of the Appeal Brief that the Examiner's
rejection of claim 17 is in error. These arguments present us with the issue:
6) Did the Examiner err in finding the combination of Fellenstein and
Mirzakhanyan teaches broadcasting to the plurality nodes, cost in
the workload bid of the node selected to receive the workload?
ANALYSIS
Rejection under 35 U.S.C. § 101
Appellants argue that claim 10 recites a "tangible computer readable
medium" and as such is directed to statutory subject matter. App. Br. 6.
Further, Appellants argue that Appellants' Specification draws a distinction
between computer storage medium, which is tangible, and computer
readable signal medium, which is not a computer readable storage medium.
App. Br 6 (citing Spec. paras. 81, 82).
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Application 13/102,538
In response, the Examiner, applying the broadest reasonable
interpretation, finds that a signal is tangible and as such the scope of the
claim encompasses a signal. Answer 12-13. We concur with the Examiner
and do not find that Appellants' Specification provides a specific definition
of the term "tangible computer readable media" that precludes the
Examiner's claim interpretation. Accordingly, we sustain the Examiner's
rejection of claims 35 U.S.C. § 101 as directed to non-statutory subject
matter.
Rejections under 35 U.S.C. § 102
Claims 10, 11, 14 and 15
Appellants' arguments directed to the first issue center around
F ellenstein' s "sample microcosm" not being a workload parameter
characterizing the workload as recited in claim 10. The Examiner has
provided a comprehensive response to these arguments in the Answer, pages
13-14 (citing Fellenstein para. 17). We have reviewed the Examiner's
response, the evidence cited by the Examiner, and we agree with the
Examiner's finding. We additionally note that paragraph 17 of Appellants'
Specification provides several examples of workload parameters, including
latency, which is one of the parameters cited by the Examiner and listed in
Fellenstein's paragraph 17. Accordingly, Appellants' arguments directed to
the first issue have not persuaded us of error in the Examiner's rejection of
claim 10.
Appellants' arguments directed to the second issue assert that
Fellenstein fails to disclose that the grid client evaluates whether to run the
grid job itself. App. Br. 10. The Examiner, in response, finds Fellenstein
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Application 13/102,538
teaches that the client is also a member of the grid, which Fellenstein
describes as a group of nodes considered to submit grid jobs associated with
bid requests. Answer 14--15 (citing Fellenstein para. 66). We concur with
the Examiner's finding and are unpersuaded of error by Appellants'
arguments. Accordingly, we sustain the Examiner's rejection of claim 10.
Appellants have not presented arguments directed to claim 11, accordingly,
we similarly sustain the Examiner's rejection of this claim.
Claim 12
Appellants' arguments directed to claim 12 are similar to the second
issue discussed above with respect to claim 10. The Examiner provides the
same response and we concur as discussed above. Accordingly, we sustain
the Examiner's rejection of claim 12 for the reasons discussed above with
respect to claim 10.
Claim 13
Appellants' arguments directed to the fourth issue center around
Fellenstein's "sample microcosm" not being a cost function as recited in
claim 13. The Examiner in response to Appellants' arguments finds that
Fellenstein's bid request includes a job cost. Answer 15. We concur and
note that Fellenstein teaches that the job cost can include a formula (i.e., a
function). See Fellenstein i-f 93 ("job cost limits may include a monetary
cost, a formula, or multiple conditioned costs"). Accordingly, Appellants'
arguments have not persuaded us of error in the Examiner's rejection of
claim 13 and we sustain the Examiner's rejection of claim 13. Appellants
have not presented arguments directed to claims 13 and 14 which depend
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Application 13/102,538
upon claim 13 accordingly, we similarly sustain the Examiner's rejection of
these claims.
Claim 18
Appellants' arguments directed to claim 18 assert Examiner error in
finding that F ellenstein teaches that the nodes, other than the target compute
node, receiving the cost included in the workload bid of the target compute
node and tracking the cost and workload parameters. App. Br 12. The
Examiner in response to Appellants' arguments finds that Mirzakhanyan
teaches the claimed feature. Answer 16 (citing Mirzakhanyan para. 65). We
note that claim 18 (which is rejected based upon 35 U.S.C. § 102) is
dependent upon claim 17 (which is rejected based upon 35 U.S.C. § 103).
Thus, it appears that the Examiner is applying an obviousness rationale to a
claim rejected as being anticipated. Accordingly, we will not sustain the
Examiner's anticipation rejection of claim 18. However, as the Examiner's
rationale is based upon obviousness, we consider the Examiner to have
intended claim 18 to be included in the obviousness rejection and sustain
Examiner's rejection as such. Because the Final Office Action and
Examiner's Answer did not expressly state that claim 18 was rejected as
obvious, we adopt as our own the Examiner's findings, conclusions, and
rationale to now reject claim 18 as obvious under 35 U.S.C. § 103(a) and
designate this rejection as a new ground of rejection.
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Rejections under 35 U.S.C. § 103
Claim 16
Appellants argue that the Examiner's rejection of claim 16 is in error
for the same reasons as claim 10. Accordingly, we sustain the Examiner's
rejection of claim 16 for the same reasons as discussed above with respect to
claim 10.
Claim 17
Appellants' arguments to the rejection of claim 17 assert that neither
F ellenstein nor Mirzakhanyan teach broadcasting the cost because the bid
notification of Fellenstein does not inherently include cost. App Br. 15. The
Examiner responds by finding that Mirzakhanyan teaches sending a
notification of a bid and that it is standard to include cost in bid notifications.
Answer 17. We concur with the Examiner's finding. We note that, contrary
to Appellants' arguments, the Examiner has not found that cost is inherent,
but that it is known to include such information. See Final Act. 10. We
agree with the Examiner that in an auction environment such as that
described in Mizakhanyan, including cost in a bid response would have been
within the knowledge of the skilled artisan. See, e.g., Mizakhanyan Fig. 1, i-f
18 (describing Figure 1 as "an exemplary online bidding system for vehicle
purchases"). Accordingly, Appellants' arguments directed to the sixth issue
have not persuaded us of error in the Examiner's rejection of claim 17 and
we sustain the Examiner's rejection.
DECISION
The decision of the Examiner to reject claims 10 through 18 is
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affirmed.
However, as our statutory basis for the rejection of claim 18 differs
from that listed by the Examiner, we designate the rejection of claim 18 as a
new ground of rejection.
This Decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). This section provides that "[a] new ground of
rejection ... shall not be considered final for judicial review."
37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new ground of rejection
to avoid termination of the appeal as to the rejected claims:
( 1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner. ...
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record ....
No time period for taking any subsequent action in connection
with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a)( 1 ).
AFFIRMED
37 C.F.R. § 41.50(b)
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