Ex Parte Fisher et al

Board of Patent Appeals and Interferences

Sep 21, 2010

10672777 (B.P.A.I. Sep. 21, 2010)

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.
10/672,777 09/26/2003 Bradford Austin Fisher RSW920030123US1 (111) 9674
46320 7590 09/22/2010
CAREY, RODRIGUEZ, GREENBERG & PAUL, LLP
STEVEN M. GREENBERG
950 PENINSULA CORPORATE CIRCLE
SUITE 2022
BOCA RATON, FL 33487
EXAMINER
BELANI, KISHIN G
ART UNIT PAPER NUMBER
2443
MAIL DATE DELIVERY MODE
09/22/2010 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 BRADFORD AUSTIN FISHER
and RANDY ALLAN RENDAHL
____________________

Appeal 2009-006321
Application 10/672,7771
Technology Center 2400
____________________

Before JOHN A. JEFFERY, JAY P. LUCAS, and JAMES R. HUGHES,
Administrative Patent Judges.

HUGHES, Administrative Patent Judge.

DECISION ON APPEAL2

1 Application filed September 26, 2003. The real party in interest is
International Business Machines Corp. (App. Br. 1.)
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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STATEMENT OF THE CASE
Appellants appeal from the Examiner’s rejection of claims 1-11 under
authority of 35 U.S.C. § 134(a). The Board of Patent Appeals and
Interferences (BPAI) has jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants’ Invention
The invention at issue on appeal relates to a system and method for
performing a real-time Service Level Agreement (SLA) impact analysis.
(Spec. ¶¶ [0001], [0010].)3
Representative Claims
Independent claims 1, 4, and 11 further illustrate the invention. They
read as follows:
1. A method for performing a real-time service level
agreement (SLA) impact analysis, the method comprising the
steps of:
detecting an event arising from a specific resource;
determining whether based upon said event said specific
resource cannot perform adequately to meet a term within an
SLA which directly implicates said specific resource; and,
further determining whether based upon said event said
specific resource inhibits another resource from performing
adequately to meet a term within said SLA which does not
directly implicate said specific resource, but directly implicates
said another resource.

3 We refer to Appellants’ Specification (“Spec.”) (paragraph numbers refer
to published application – Pub. No. 2005/0071458 A1); Appeal Brief
(“App. Br.”) filed March 3, 2008; and Reply Brief (“Reply Br.”) filed July
14, 2008. We also refer to the Examiner’s Answer (“Ans.”) mailed May 12,
2008.
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4. A system of performing a real-time service level
agreement (SLA) impact analysis comprising:
a service level manager programmed to establish a
plurality of SLAs directly implicating selected resources;
a relationship database configured for coupling to a
plurality of management applications programmed to manage
said selected resources; and,
a modeling and evaluation system communicatively
coupled to said relationship database and said service level
manager and programmed to perform a real-time SLA impact
analysis based both upon resources directly implicated by said
SLAs and also upon resources which are related to said
resources directly implicated by said SLAs.
11. A method for assessing the impact of an indirectly
implicated resource within an service level agreement (SLA) in
real time, the method comprising the steps of:
establishing an SLA directly implicating a performance
level for an underlying resource;
noting at least one resource upon which said underlying
resource depends;
receiving an event arising from said at least one resource;
determining whether said event affects said underlying
resource in meeting said performance level; and,
if said event prevents said underlying resource from
meeting said performance level, generating a notification
specifying an impact of said event upon said SLA.

References
The Examiner relies on the following references as evidence of
unpatentability:
Main US 5,893,905 April 13, 1999

Dugan US 2002/0083166 A1 Jun. 27, 2002
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Bartz US 6,701,342 B1 Mar. 2, 2004
(filed Jan. 20, 2000)

Barkan US 6,925,493 B1 Aug. 2, 2005
(filed Nov. 17, 2000)

Rejections on Appeal
The Examiner rejects claim 11 under 35 U.S.C. § 102(e) as being
anticipated by Bartz.
The Examiner rejects claims 1, 3, 8, and 10 under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Main and Bartz.
The Examiner rejects claims 2 and 9 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Main, Bartz, and Barkan.
The Examiner rejects claim 4 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Main and Barkan.
The Examiner rejects claims 5 and 6 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Main, Barkan, and Dugan.
The Examiner rejects claim 7 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Main, Barkan, and Bartz.

ISSUES
Based on our review of the administrative record, Appellants’
contentions, and the Examiner’s findings and conclusions, the pivotal issues
before us are as follows:
1. Does the Examiner err in finding the Bartz reference discloses
“establishing an SLA directly implicating a performance level for an
underlying resource; noting at least one resource upon which said underlying
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resource depends; [and] receiving an event arising from said at least one
resource” as recited in Appellants’ claim 11?
2. Does the Examiner err in finding the Main and Bartz references
would have collectively taught or suggested “detecting an event arising from
a specific resource; determining whether based upon said event said specific
resource cannot perform adequately to meet a term within an SLA . . . ; and,
further determining whether based upon said event said specific resource
inhibits another resource” as recited in Appellants’ claim 1?
3. Does the Examiner err in finding the Main and Barkan
references would have collectively taught or suggested “a service level
manager programmed to establish a plurality of SLAs directly implicating
selected resources; . . . a plurality of management applications programmed
to manage said selected resources; and, a modeling and evaluation system
communicatively coupled to said . . . service level manager and programmed
to perform a real-time SLA impact analysis based both upon resources
directly implicated by said SLAs and also upon resources which are related
to said resources directly implicated by said SLAs” as recited in Appellants’
claim 4?

FINDINGS OF FACT (FF)
Bartz Reference
1. Bartz describes “a method and apparatus for evaluating Service
Level Agreements (SLAs) that describe the level of services that are to be
provided to customers.” (Col. 2, ll. 14-17.) Bartz’s method and apparatus
“measure the quality of service being provided to customers . . . to
determin[e] whether or not the quality of service is in compliance with an
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SLA.” (Col. 2, ll. 19-21.) The SLA is a “data structure that includes a
logical expression of one or more Service Level Objectives (SLOs).” (Col.
2, ll. 26-27.) Bartz’s method and apparatus “together comprise an SLA
management tool that retrieves and evaluates measurement data associated
with each SLO to determine whether or not any SLO has been violated. The
SLO evaluation results are then utilized in the logical expression of the SLA
to determine whether or not the SLA is compliant.” (Col. 2, ll. 28-34.) (See
col. 9, l. 30 to col. 12, l. 8; Fig. 6.)
2. Bartz describes a monitoring and measurement tool (Firehunter)
that tests resources throughout a computer system or network and acquires
diagnostic/measurement data from those resources. The measurement tool
captures, aggregates, and correlates service performance metrics allowing
assessment of system performance and availability provided to customers.
(Col. 3, ll. 7-48.) The system model monitored by the measurement tool
“comprises all of the resources end-to-end throughout the network that are
utilized to provide services to the customers of the ISP or ESP. These
resources include the portions of the backbone of the network that are
utilized in providing those services (e.g., routers) as well as various servers
(e.g., DNS server, proxy server, web server, DHCP server, etc.) that are
utilized in providing services to the customer.” (Col. 3, ll. 20-27.)
3. Bartz describes two SLOs combined into an SLA logical
expression. (Col. 9, ll. 30-31.) “SLO1” and “SLO2” correspond to
characteristics “associated with a particular resource[s].” (Col. 9, ll. 31-35.)
For example, SLO1 may be the throughput or response time of a particular
server (Server 1), and SLO2 may be the response time of a different
associated server (Server 2). (Col. 9, l. 31 to col. 10, l. 4; col. 10, ll. 24-49;
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col. 11, ll. 33-45; Fig. 6.) Bartz determines when a SLO has been violated,
for example, if the throughput of Server 1 falls below a threshold (<50
kb/sec for 5 minutes). (Col. 9, l. 30 to col. 12, l. 11; Fig. 6.) Bartz
determines SLO violations and SLA compliance using an SLA manager and
compliance checker that evaluate quality of service (QoS) data against
baseline data. Bartz stores the resulting calculations in an SLA database that
can be used to produce SLA reports tailored to a user’s or customer’s needs.
(Col. 13, ll. 25-63; Fig. 7.)
Main Reference
4. Main describes a system and method for automated
performance monitoring of data processing jobs according to Service Level
Agreements (SLAs) by comparing actual performance against a SLA,
“identify[ing] discrepancies, and analyz[ing] impacts to other jobs in a job
stream.” (Col. 3, ll. 33-34; see col. 3, ll. 27-34.) Main explains enterprises
use extensive data processing to perform business-critical tasks, such as
billing and order entry. The data processing jobs “may be batch jobs that
run according to a schedule or other dependency,” and often a business
process (task) “is performed by a job stream, and thus, many jobs are
dependent on the successful completion of previous jobs.” (Col. 1, ll. 30-33;
see col. 1, ll. 23-35.)
5. Main describes a production server operating an automated
SLA monitor (ASM) that receives production (mainframe) computer
exception data and job performance data from the Unicenter Star console.
(Col. 3, l. 35 to col. 4, l. 49; Fig. 2.) Main explains that:
a Computer Associates (CA) product known as CA-7 and/or
CA-Unicenter operates on the production computer 102. CA-7
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and CA-Unicenter are well known to persons skilled in the
relevant art(s) and are used to schedule jobs, collect job
performance data and identify job processing exceptions. Other
produces having this functionality could alternatively be used.
Job performance data includes runtimes and return codes.
Exceptions include ABENDs, terminations, and error codes.
(Col. 3, ll. 53-61.)
Main also describes collecting job exception data in an incorporated
reference:
Unicenter Star console 104A retrieves job exception data
from the production computers’ (102A-102L) CA-7 programs.
This data includes job ABENDs, error codes, and terminations.
A system and process for retrieving job exception data from
production computers and notifying the user is disclosed in a
copending application entitled “Integrated Cross-Platform
Batch Management System,” application serial number
08/672813, . . . incorporated herein by reference in its entirety.
(Col. 5, ll. 29-38.)
The incorporated reference (now U.S. Patent No. 5,872,970) describes
numerous types of exceptions:
Examples of such exceptions include, but are not limited to, late
conditions, JCL errors, system ABENDs, user ABENDs,
skeleton status, waiting on resources, or return codes not equal
to “0”. A late condition exception is a job that appears late at a
selected data center. A JCL error results when a job has a JCL
conflict or error. System ABENDs are jobs that have
abnormally ended due to a system problem. User ABENDs are
jobs that have abnormally ended due to a user problem.
Skeleton status are jobs that have been scheduled at a data
center, but cannot be submitted due to resource issues. Waiting
on resources refers to there being a lack of memory (i.e., RAM,
disk, tape drive, etc.) and/or initiators to properly execute the
job.
(Col. 6, ll. 38-50.)
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6. Main describes triggering an alert upon receiving an exception,
such as an ABEND (col. 7, ll. 37-40), or when the calculated clocktime
exceeds an SLA completion time. (Col. 8, l. 55 to col. 9, l. 12; Fig. 5,
elements 510, 512, 514, & 516.) For example:
In step 514, the job record is tested to determine if the
calculated clocktime of all remaining jobs in the SLA jobstream
exceeds the SLA completion time. The current system time is
used as a base and then the last job in the SLA jobstream that
completed is determined. This is determined from the prior run
data. Then the remaining clocktimes from the clocktime data
are added together to get an estimated completion time. If the
estimated completion time exceeds the SLA completion time,
an alert is triggered in step 516.
(Col. 8, l. 65 to col. 9, l. 6.)
Barkan Reference
7. Barkan describes a system enabling service providers
(Application Service Providers (ASPs)) to manage Service Level
Agreements (SLAs) utilizing the Service Level Agreement Language of
Measurement (SLALOM). (Col. 1, ll. 14-26; col. 3, l. 66 to col. 4, l. 60.)
Barkan’s system allows ASPs “to define SLAs with their customers.” (Col.
1, l. 21; see col. 4, ll. 14-30.) Barkan also describes a central management
tool based on SLALOM that allows the ASP to manage all aspects of service
agreements – SLAs – between the ASP and its customers, including
monitoring the actual service level delivered, and providing reporting of the
actual service level delivered compared with the service level agreed upon in
the SLA. (Col. 2, ll. 35-50; col. 4, ll. 11-17, 30-38.) Barkan’s service-level
language (SLALOM) contains formulas describing “how to compute some
service-level value from measurements collected by the ASP” using “various
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tools that measure resources the ASP uses to supply service to its
customers.” (Col. 3, ll. 34-39; col. 4, ll. 43-48.) The formulas “can be
loaded into the server computer memory, and from there it may collect
measurements from measurement tools, and subsequently calculate the
service level. The results of these computations can be analyzed, saved and
monitored. Furthermore these results can be used to generate various
summaries and reports.” (Col. 3, ll. 40-46; col. 4, ll. 49-54.)
8. Barkan’s system includes: a “SLA Manager” that “manages the
administrative work of the SLA” (col. 5, ll. 21-23); a “SLA Database” that
“contains the information that the SLA Manager uses” including “the SLA
definitions that target the amount of service level promised to the customer”
(col. 5, ll. 24-29); a “SLA Engine” that processes “the data in the SLA DB
32 and generat[es] maps of the promised service level for a customer or a
group of customers” (col. 5, ll. 30-34); a “CSL Engine” that “processes the
measurements and events reported by the [monitoring tools] . . . . [This]
information is calculated, aggregated and then stored in the CSL [database]
reflecting the measured service level actually provided by the ASP at a
certain time interval” (col. 5, ll. 35-41); a “CSL DB” or “CSL database” that
“contains the Calculated Services Level measurements and events calculated
and aggregated by the CSL engine[,] . . . . [and the] “aggregation method, as
well as the aggregation time defined in the SLA DB 32 as a part of the
formula of the given rule” (col. 53, ll. 42-47); and an “Infrastructure
Manager” that “is responsible for holding the information about [t]he map of
resources, i.e. what is the role of each resource, where is it connected, and
which user/users are influenced by it . . . . [which] allows the system to find
the resources that should be monitored for each customer, in order to
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compute that customer’s service level” (col. 6, ll. 24-31). (See Col. 5, ll.
21-47; col. 6, ll. 24-31; Figs. 2 and 3.)
9. Barkan also provides a detailed example of an SLA between an
ASP and a customer (col. 9, l. 8 to col. 10, l. 54), including an explanation of
the information utilized in formulating and monitoring a particular SLA.
(Col. 6, l. 38 to col. 10, l. 54.) With respect to this SLA, Barkan describes
specific infrastructure or resources – a “mapping of ASP resources” –
associated with the SLA terms and monitored by the system to determine the
actual service levels provided to the customer. (Col. 7, ll. 29-34.) For
example: in the SLA example, Rule (c) details the uptime
objective/requirement for a web server, application server, and two routers;
Rule (d) describes the applications (resources) provided by the ASP to the
customer related to the resources in Rule (c) – in this instance SAP, Excel,
and Remedy. (Col. 9, l. 8 to col. 10, l. 54.)

ANALYSIS
Appellants have elected to separately argue independent claims 1
(App. Br. 10), 4 (App. Br. 14), and 11 (App. Br. 6), and argue claims 3, 8,
and 10 as a group based on representative claim 1 (App. Br. 10). Appellants
do not separately argue claims 2 and 9 (App. Br. 14), claims 5 and 6 (App.
Br. 18-19), or claim 7 (App. Br. 19). Therefore, we select independent
claims 1, 4, and 11 as the representative of Appellants’ groupings, and we
will address Appellants’ arguments with respect thereto. 37 C.F.R.
§ 41.37(c)(1)(vii). See In re Nielson, 816 F.2d 1567, 1572 (Fed. Cir. 1987).
Appellants have the opportunity on appeal to the Board of Patent
Appeals and Interferences (BPAI) to demonstrate error in the Examiner’s
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position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006) (citing In re
Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998)). The Examiner sets forth a
detailed explanation of a reasoned conclusion of anticipation in the
Examiner’s Answer with respect to representative claim 11. (Ans. 3-5, 18-
20.) The Examiner also sets forth a detailed explanation of a reasoned
conclusion of obviousness in the Examiner’s Answer with respect to
representative claim 1 (Ans. 5-6, 20-22) and representative claim 4 (Ans. 12-
14, 23-25). Therefore, we look to the Appellants’ Briefs to show error in the
proffered reasoned conclusions. See Kahn, 441 F.3d at 985-86.
We also note that Appellants make numerous confusing and irrelevant
arguments directed to the prosecution of their patent application preceding
the last office action mailed on October 3, 2007 (“Final Office Action”).4
We interpret Appellants’ arguments as follows.
Issue 1: Arguments Concerning the Examiner’s Rejection
of Claim 11 under 35 U.S.C. § 102(e)
The Examiner rejects claim 11 for being anticipated by the Bartz
reference. (Ans. 3-5, 18-20.) Appellants contend that: the Bartz reference
“does not identify [a] particular underlying resource” and the Examiner has
failed to “identify where Bartz teaches the ‘underlying resource’” (App. Br.
7); “the Examiner has failed to specifically identify, within Bartz, the

4 Appellants make numerous arguments related to office actions preceding
the Final Office Action. (App. Br. 5-18.) We remind Appellants that they
currently appeal the Examiner’s rejection of claims 1-11 in the Final Office
Action. (App. Br. 2.) The rejections in the Final Office Action are the only
rejections before the BPAI on appeal. Accordingly, the rejections made in
the preceding office actions and any corresponding responses by Appellants
are not before the BPAI, and we will not address any arguments related to
prosecution preceding the Last Office Action.
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features corresponding the claimed ‘at least one resource’ upon which the
underlying resource depends” (App. Br. 8); and that “[t]he throughput
falling may be considered ‘experiencing an event,’ but the Examiner has not
established that one having ordinary skill in the art would consider
experiencing an event to identically disclose the claimed receiving an event”
(App. Br. 9).
The Examiner finds that the Bartz reference discloses the disputed
features of an underlying resource and “at least one resource upon which the
underlying resource depends,” in that Bartz describes Service Level
Objectives (SLOs) for characteristics of a particular resource – for example,
two distinct server resources (Server 1 and Server 2) where the
characteristics described in the SLOs affect one another, for example that the
throughput of Server 1 (a storage server) may affect the response time of
Server 2 (a web server) or vice versa. (Ans. 3-4, 18-19.) The Examiner also
finds that the Bartz reference discloses the disputed feature of “receiving an
event,” as Bartz explicitly describes detecting a SLO violation, for example,
throughput falling below a threshold. (Ans. 4, 19-20.)
Based on the record before us, we find no error in the Examiner’s
anticipation rejection of representative claim 11. After reviewing the record
on appeal, we agree with the Examiner that the Bartz reference discloses the
disputed limitations of representative claim 11. We begin our analysis by
broadly but reasonably construing Appellants’ disputed claim limitations.
See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004);
In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989). We construe Appellants’
recited resources – Appellants’ “underlying resource” and “at least one
resource upon which the underlying resource depends” – as meaning a
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source of something useful, such as a source of information or a service
provider, or an asset, for example, a server. In doing so, we note that
Appellants’ Specification does not limit the meaning of a “resource.” (See
Spec. 7-8 & 10.) We also construe Appellants’ claimed “receiving an
event” as meaning coming into possession of or detecting an event. We note
that Appellants’ Specification does not explicitly define or otherwise limit
the meaning of “receiving.” (See Spec. 9, first para.)
As detailed in the Findings of Fact section supra, the Bartz reference
describes a system for evaluating SLAs by measuring the quality of service
(QoS) provided by system components to customers. The SLAs include
SLOs, which represent the QoS objectives. (FF 1.) Bartz describes a
monitoring and measurement tool that captures data for all of the resources
in a network, including various servers, e.g., proxy servers and web servers,
utilized to provide services to customers. (FF 2.) Bartz also describes two
SLOs (SLO1 and SLO2) that correspond to characteristics of particular
resources, e.g., SLO1 may be the throughput or response time of a particular
server (Server 1) and SLO2 may be the response time of a different
associated server (Server 2). (FF 3.) Bartz further detects and reports when
a SLO has been violated, e.g., when the throughput of a server falls below a
threshold. (FF 3.)
Thus we find that Bartz discloses multiple interrelated (dependent)
resources, e.g., a proxy server and a web server, or as explained by the
Examiner, a web server and a storage server. Bartz’s SLAs include multiple
SLOs. An SLO may directly implicate a particular resource (e.g., the
response time of a proxy server) and another SLO may describe
characteristics of an interrelated resource (e.g., the response time of a web
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server). We find these interrelated resources disclose Appellants’ recited
“underlying resource” and “at least one resource upon which the underlying
resource depends.” We also find that Bartz discloses detecting and reporting
SLO violations, which we find discloses Appellants’ recited “receiving an
event.”
We find Appellants’ contrary arguments unpersuasive. Specifically,
Appellants mischaracterize Bartz as failing to describe the recited resources
and receiving events related to the resources. Further, Appellants’
arguments are not commensurate with the scope of their recited claim
limitations. Appellants’ disputed claim limitations merely require
establishing an SLA for the performance a particular first resource, “noting”
a second interrelated resource on which the first resource depends, and
receiving an event related to the second resource. Appellants’ claim does
not positively recite how the second resource is “noted” or how the event is
“received.” We find (supra) that Bartz discloses SLOs describing the
performance of at least two interrelated servers, which we interpret as
“noting” the second resource. Bartz also detects (and reports) a SLO
violation for the second server, which we interpret as “receiving an event
arising from” the second server (resource). Thus, we find the Bartz
reference discloses Appellants’ disputed claim limitations as recited in
Appellants’ independent claim 11. It follows that Appellants do not
persuade us of error in the Examiner’s anticipation rejection of claim 11, and
we affirm the Examiner’s rejection of this claim.
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Issue 2: Arguments Concerning the Examiner’s Rejection
of Claims 1, 3, 8, and 10 under 35 U.S.C. § 103(a)
The Examiner rejects claim 1 for being obvious in view of the Main
and Bartz references. (Ans. 5-6, 20-22.) Appellants elect (supra) claim 1 as
representative of claims 3, 8, and 10. Appellants contend that: the Examiner
does not establish that the Main reference teaches “an event arising from a
specific resource is detected” (App. Br. 11); the Examiner does not establish
that the Main reference teaches “‘determining whether based upon said
event said specific resource cannot perform adequately’” (App. Br. 11); and
the Bartz reference is “silent as to what specific resource is inhibited by the
event and the determination of the same” (App. Br. 13).
The Examiner finds that the Main reference teaches the disputed
features of “detecting an event arising from a specific resource” and
“determining whether based upon said event said specific resource cannot
perform adequately to meet a term within an SLA.” (Ans. 5.) The Examiner
also finds that the Bartz reference teaches the disputed feature of
“determining whether based upon said event said specific resource inhibits
another resource from performing adequately to meet a term within said
SLA which does not directly implicate said specific resource, but directly
implicates said another resource.” (Ans. 6.) (See Ans. 5-6, 20-22.)
Based on the record before us, we find no error in the Examiner’s
obviousness rejection of representative claim 1. We agree with the
Examiner that the Main and Bartz references would have collectively taught
or suggested the disputed limitations of representative claim 1. As with
claim 11 supra, we begin our analysis by construing Appellants’ disputed
claim limitations, and we broadly but reasonably construe Appellants’
recited resources – Appellants’ “specific resource” and “another resource” –
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as meaning a source of something useful, such as a source of information or
a service provider, or an asset, for example, a data processing job performed
by a mainframe computer or a computing resource such as CPU time.
As detailed in the Findings of Fact section supra, the Main reference
describes a system for monitoring performance of data processing jobs
according to SLAs by comparing the performance against the SLA, and
identifying discrepancies and analyzing impacts to other jobs in a job
stream. (FF 4-5.) In particular, Main describes performing business-critical
tasks, such as billing and order entry using batch data processing jobs that
are performed in a job stream and “that run according to a schedule or other
dependency,” and “are dependent on the successful completion of previous
jobs.” (FF 4.) Thus, we find that Main teaches specific resources (data
processing jobs), and related or dependent resources (subsequent data
processing jobs in a job stream). Main also describes that the software
operating on the mainframe (CA-7) is “well known to persons skilled in the
relevant art(s)” to collect job performance data and identify job processing
exceptions such as ABENDs. (FF 5.) Main further discloses numerous
exceptions, such as system ABENDs and “wating on resources” (such as
lack of memory (RAM, disk or tape drive)) (FF 5), and triggering alerts
when an exception is received – for example, an ABEND is received or the
calculated clocktime exceeds an SLA completion time (FF 6).
As explained by the Examiner, ABENDs are well known in the art,
and would have implicated a particular computer resource (such a CPU time
or disk storage) to one skilled in the art. (Ans. 20-21.) Additionally, the
Main reference teaches that software operating on the mainframe was well
known for collecting job performance data and identify job processing
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exceptions such as ABENDs or waiting on resources such as memory.
Therefore we find Main teaches specific resources (processing jobs and/or
computer resources) utilized to perform a task such as billing, and detecting
events (triggering alerts – exceptions/ABENDs) related to the resources. We
also find that Main teaches determining based upon the alert (event) that the
specific resource cannot perform adequately to meet the SLA, in that Main
at least explicitly describes calculating a clocktime for the remaining jobs in
an SLA jobstream based on the run time data of a last completed data
processing job, and determining if the clocktime exceeds the SLA
completion time for the jobstream. (See FF 6.) We therefore find that Main
would have taught or suggested to a skilled artisan Appellants’ recited
features of “detecting an event arising from a specific resource” and
“determining whether based upon said event said specific resource cannot
perform adequately to meet a term within an SLA.”
We find (supra) that Bartz describes (teaches) interrelated resources
as well as detecting and reporting SLO violations. We therefore find that
Bartz teaches events, specific resources, and related (another) resources. As
explained by the Examiner, Bartz’s figure 6 shows: “an SLA violation
caused by a combination of two separate events (throughput [<] 50 Kb/sec
for 5 minutes and response time > 5 seconds for 2 minutes), wherein the
server resource is unable to maintain the response time in part due to
throughput from storage devices falling below the specified rate of 50
Kb/sec for 5 minutes.” (Ans. 6.) Thus, we also find that Bartz would have
taught or suggested to one skilled in the art determining based upon an event
(an SLO violation for a specific resource) that the specific resource inhibits
another resource from performing adequately to meet an SLA term (a second
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SLO) that does not directly implicate the specific resource. Accordingly, we
find Bartz would have taught or suggested to a skilled artisan Appellants’
recited feature of “determining whether based upon said event said specific
resource inhibits another resource from performing adequately to meet a
term within said SLA which does not directly implicate said specific
resource, but directly implicates said another resource.”
Appellants’ contrary arguments are unpersuasive. We find (supra)
that both Main and Bartz teach a “specific resource,” detecting an event
arising from the specific resource, and determining based on the event
whether the specific resource violates an SLA term. We also find (supra)
that Bartz teaches a second resource (another resource). We further find
(supra) that Bartz teaches or suggests the specific resource’s SLO violation
inhibiting the second resource (causing at least in part a SLO violation and
resulting SLA non-compliance for/by the second resource). Additionally,
Appellants do not provide any persuasive evidence or argument supporting
their assertions of alleged error in the Examiner’s position, and in particular,
traversing the Examiner’s interpretation of Bartz’s figure 6 (see Ans. 6,
discussed supra). Instead Appellants merely assert that “the Examiner
employed similar analysis as to characterizing the teachings of Bartz when
characterizing the teaching of Bartz in the rejection of claim 11 under 35
U.S.C. § 102.” (App. Br. 13; see App. Br. 8 and Reply Br. 3-4, 7.) Even if
we assume, arguendo, that Appellants are correct, and the Examiner has
failed to show that Bartz explicitly discloses that server 1 violating “SLO 1
affects how server 2 meets SLO 2” (Reply Br. 4), this does not amount to
evidence (or even argument) that such a relationship is beyond the
understanding or skill of one skilled in the art, i.e., that Bartz would not have
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taught or suggested such a relationship to a skilled artisan. See Muniauction,
Inc. v. Thomson Corp., 532 F.3d 1318, 1327 (Fed. Cir. 2008); Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007)
(Relying on the common sense of those skilled in the art, as well as
Leapfrog’s failure to present evidence that the modification was beyond the
skill of those skilled in the art, the Federal Circuit found a proposed
modification to the prior art obvious.) Thus, we find the Main and Bartz
references would have taught or suggested to one skilled in the art
Appellants’ disputed claim limitations as recited in Appellants’ independent
claim 1.
Appellants do not separately argue independent claim 8 or dependent
claims 3 and 10, and these claims fall with representative claim 1. It follows
that Appellants do not persuade us of error in the Examiner’s obviousness
rejection of claims 1, 3, 8, and 10, and we affirm the Examiner’s rejection of
these claims.
Claims 2 and 9 under 35 U.S.C. § 103(a)
The Examiner rejects claims 2 and 9 for being obvious in view of the
Main, Bartz, and Barkan references. (Ans. 9-12.) Appellants do not
separately argue the rejection of claims 2 (dependent on claim 1) and 9
(dependent on claim 8). Rather, Appellants simply reiterate their arguments
made with respect to claim 1 (supra). (App. Br. 14.) Based on the record
before us, we find no error in the Examiner’s obviousness rejection of claims
2 and 9 for the reasons set out with respect to claim 1 (supra). Accordingly,
we also affirm the Examiner’s rejection of claims 2 and 9.
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Issue 3: Arguments Concerning the Examiner’s Rejection
of Claim 4 under 35 U.S.C. § 103(a)
The Examiner rejects claim 4 for being obvious in view of the Main
and Barkan references. (Ans. 12-14, 23-25.) Appellants contend that
Barkan does not teach: (1) a service level manager programmed to establish
a plurality of SLAs directly implicating selected resources (App. Br. 14-15);
(2) a plurality of management applications programmed to manage the
selected resources (App. Br. 16); (3) a modeling and evaluation system
(App. Br. 16-17); or (4) the system performing a real-time SLA impact
analysis based both upon resources directly implicated by the SLAs and
related resources (App. Br. 18).
The Examiner finds that the Main reference generally teaches a
system for performing a real-time SLA impact analysis. (Ans. 12.) The
Examiner finds that the Barkan reference describes an SLA Manager, an
SLA DB (database), and an SLA Engine, which teach the disputed features
of a system with a service level manager programmed to establish a plurality
of SLAs directly implicating selected resources. (Ans. 13, 23-24.) The
Examiner also finds that the Barkan reference describes an Infrastructure
Manager that “stores the information about the map of resources” (Ans. 13)
in an Infrastructure DB (database), as well as “the various functions that the
Infrastructure Manager 24 is responsible for” (Ans. 24), and this disclosure
teaches the disputed feature of a plurality of management applications
programmed to manage the selected resources. (Ans. 13, 24.) The
Examiner further finds that the Barkan reference describes a CSL Engine
together with the SLA engine that function “as a modeling and evaluation
system” (Ans. 13), and which teach the disputed features of a modeling and
evaluation system programmed to perform a real-time SLA impact analysis
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based both upon resources directly implicated by the SLAs and also related
resources. (Ans. 13-14, 24-25.)
Based on the record before us, we find no error in the Examiner’s
obviousness rejection of representative claim 4. We agree with the
Examiner that the Main and Barkan references would have collectively
taught or suggested the disputed limitations of representative claim 4 for
essentially the reasons set forth by the Examiner supra (see Ans. 12-14, 23-
25). We additionally note, as detailed in the Findings of Fact section supra,
the Barkan reference teaches a system for ASPs to manage SLAs, which
includes a SLA Manager, a SLA Database including SLA definitions, and a
SLA Engine that processes the SLA database data and generates a map of
the SLA service level (i.e., the role of each resource in the SLA objective
and its relationships with other resources and/or users). (FF 7-8.) Barkan
also teaches an Infrastructure Manager that retrieves and stores information
about the resources referenced by the in the SLA, e.g., the role of each
resource, its relationship or connection with other resources and/or
applications, and the users affected by the resource, which allows the system
to locate the resources and determine the resources that require monitoring
to compute each customer’s service level (i.e., performing/providing
resource management applications). (FF 8.) Barkan further provides a
detailed SLA example that teaches SLA rules (objectives), including: an
uptime requirement for a web server, application server, and two routers –
which we broadly but reasonably construe to be “selected resources” directly
implicated in an SLA; and related applications such as SAP, Excel, and
Remedy– which we broadly but reasonably construe to be “resources which
are related to said resources directly implicated by said SLAs.” (FF 9.)
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Thus, we find (supra) the Main reference teaches a system for
performing real-time SLA impact analysis, and the Barkan reference would
have taught or suggested to one skilled in the art the particular features of
the system. Specifically, we find Barkan would have taught or suggested to
one skilled in the art Appellants’ disputed features of: (1) a service level
manager – taught by Barkan’s SLA Manager and related components –
programmed to establish a plurality of SLAs directly implicating selected
resources; (2) a plurality of management applications – taught by Barkan’s
Infrastructure Manager – programmed to manage the selected resources; (3)
a modeling and evaluation system – taught by Barkan’s SLA Engine and
CSL Engine; and (4) that performs a real-time SLA impact analysis based
both upon resources directly implicated by the SLAs – e.g., an application
server – and related resources – e.g., related applications such as SAP.
Appellants do not separately argue dependent claims 5-7 and these
claims fall with representative claim 4 (supra). It follows that Appellants do
not persuade us of error in the Examiner’s obviousness rejection of claims 4-
7, and we affirm the Examiner’s rejection of these claims.

CONCLUSIONS OF LAW
Appellants have not shown that the Examiner erred in rejecting claim
11 under 35 U.S.C. § 102(e).
Appellants have not shown that the Examiner erred in rejecting claims
1-10 under 35 U.S.C. § 103(a).

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DECISION
We affirm the Examiner’s rejection of claim 11 under 35 U.S.C.
§ 102(e).
We affirm the Examiner’s rejection of claims 1-10 under 35 U.S.C.
§ 103(a).

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

msc

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