Ex Parte Flower et al

Board of Patent Appeals and Interferences

Aug 14, 2012

10889598 (B.P.A.I. Aug. 14, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte RICHARD FLOWER, LEONIDAS KONTOTHANASSIS,
RIVKA LADIN, and DAVID GODDEAU
____________________

Appeal 2010-003345
Application 10/889,598
Technology Center 2100
____________________

Before ROBERT E. NAPPI, KALYAN K. DESHPANDE, and
MICHAEL J. STRAUSS, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-003345
Application 10/889,598

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from final rejection of
claims 1-19. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-
part.

Introduction
The invention is directed to a method and system for scheduling jobs
in a cluster of compute servers by monitoring the performance of individual
compute servers in a cluster. Jobs are assigned to compute servers based on
the most current performance information of the compute servers and the job
profile of jobs to be assigned to the servers. Abstract.

Exemplary Claim
Exemplary claim 1 under appeal reads as follows:
1. A method of scheduling a subject job in a cluster of
computers comprising:
storing job profiles of jobs executed by compute servers
in the cluster of computers;
assigning the subject job to a compute server in the
cluster of computers by using job profile information from the
stored job profiles, wherein the job profile information includes
one or more of information relating to input/output operations
in the jobs, information relating to instructions executed by the
compute servers for the jobs, and amount of data collected from
storage in the jobs;
monitoring performance of the compute server
processing the subject job; and
updating the job profiles based on the performance of the
compute server.

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References
US 6,539,445 Krum 03/25/2003
US 7,185,046 Ferstl 02/27/2007
(filed Aug. 28, 2002)
US 5,774,668 Choquier 06/30/1998

Olaf Arndt, Bernd Freisleben, Thilo Kielmann and Frank
Thilo; “A comparative study of online scheduling
algorithms for networks of workstations”; ACM 2000;
pages 95-112 (“Olaf”)

Rejections at Issue 1
The Examiner rejected claims 1, 2, 6-8, 12-14, 18 and 19 as
unpatentable under 35 U.S.C. § 103(a) as being obvious over the
combination of Krum and Ferstl; claims 3, 9 and 15 as unpatentable under
35 U.S.C. § 103(a) as being obvious over the combination of Krum, Ferstl
and Olaf; and claims 4, 5, 10, 11, 16 and 17 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Krum, Ferstl and Choquier.
Ans. 3-4.

Appellants’ Contentions
1. The teachings of Ferstl would have led a person of ordinary skill in
the art away from combining Krum and Ferstl to achieve the subject matter
of claim 1. App. Br. 5-7.

1 Appellants only argue the rejection of claims 1, 2, 6-8, 12-14, 18 and 19
under 35 U.S.C. § 103(a) of which claims 2-5, 8-11 and 14-17 are not
argued separately: claims 1, 2, 7, 8, 13, and 14 are argued collectively as are
claims 6, 12 and 18; claim 19 is argued separately (App. Br. 5-9). In view of
the foregoing, we select claim 1 as representative of all the claims 1, 2, 7, 8,
13, and we will address the rejection of claims 6, 12, 18 and 19 separately.
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2. Krum’s description of estimating the time it should take to run a
job on a slave computer based on a size of the job and the estimated load on
the slave computer does not teach or suggest including as part of a job
profile “indications of arguments for a particular executable that have been
observed to have a material impact on job execution[,]” as per claim 6. App.
Br. 7-8.
3. Appellants contend that assigning a job to a slave computer that can
complete the job the soonest, as taught by Krum, is patentably different from
assigning a job to a compute server that has run a job with a similar job
profile as per claim 19. App. Br. 9-10.
Issues
Did the Examiner err in rejecting claim 1 as being obvious over Krum
and Ferstl because the teachings of the references are not properly
combinable under 35 U.S.C. § 103(a)?
Did the Examiner err in finding that the combination of Krum and
Ferstl teaches or suggests a step of assigning a job using a job profile that
includes “indications of arguments for a particular executable that have been
observed to have a material impact on job execution[,]” as required by claim
6?
Did the Examiner err in finding that the combination of Krum and
Ferstl teaches or suggests a step of assigning a job “in response to
determining that a particular one of the compute servers has run a job with a
job profile that is similar to the job profile of the subject job,” as required by
claim 19?
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ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments (Appeal Brief and Reply Brief) that the Examiner has erred. We
disagree with Appellants’ conclusions with regard to contention 1 above and
adopt as our own (1) the findings and reasons set forth by the Examiner in
the action from which this appeal is taken and (2) the reasons set forth by the
Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief
in connection with claim 1. We concur with Appellants’ conclusions that
the Examiner erred in finding that Krum in combination with Ferstl teaches
or suggests the subject matter of claims 6 or 19.
In connection with contention 1 above, the Examiner has provided a
response on pages 10 through 12 of the Answer, with which we concur.
Specifically, Appellants argue that Ferstl’s static profiles are not
dynamically updated and therefore are not applicable to the environment of
Krum wherein job profiles are updated based on the monitored performance
of a computer server. App. Br. 7. The Examiner has provided a response to
this argument, identifying that the prior art teaches the advantages of using
the profiles suggested by Ferstl to accelerate operations and influence the
execution of the job. Ans. 10-12. The Examiner concludes that “one of []
ordinary skills of the art would utilize the job profiling of Ferstl to assign [a]
job to a server or job handler based on the input characteristics and the
collected information during the job execution for better job execution
decision.” Id at 11-12. We concur with the Examiner's analysis.
Our reviewing court has said:
A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a
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direction divergent from the path that was taken by the applicant. The
degree of teaching away will of course depend on the particular facts;
in general, a reference will teach away if it suggests that the line of
development flowing from the reference's disclosure is unlikely to be
productive of the result sought by the applicant.
In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) (citing United States v.
Adams, 383 U.S. 39, 52 (1966)). However, a reference that “teaches away”
does not per se preclude a prima facie case of obviousness, but rather the
“teaching away” of the reference is a factor to be considered in determining
unobviousness. Id. Here we do not find that Ferstl, by teaching job profiles
used in a static environment would discourage the skilled artisan from using
those profiles in other environments including wherein the profiles are
dynamically updated. Thus, Appellants' arguments directed to contention 1
have not persuaded us of error in the Examiner's rejection of claims 1, 2, 7,
8, and 13. Further, as Appellants have not presented separate arguments
directed to the rejections of dependent claims 3, 4, 5, 9, 10, 11, 15, 16 and 17
we similarly sustain the Examiner’s rejections of these claims.
In connection with contention 2, we agree with Appellants that Krum
fails to teach or suggest job profiles that include indications of arguments for
a particular executable that have been observed to have a material impact on
job execution or assigning the subject job to the compute server based on the
indications of arguments. The Examiner finds that Krum teaches receiving a
request to run various jobs including identification of an application that is
to be executed. The job request is then assigned to a computer that can
perform the job soonest (equating this with a material impact) based on job
statistics. Ans. 12. However, while each job assignment is based on job
statistics that may be influenced by various factors and thereby be indicative
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of the job’s impact, there is no specific teaching or suggestion that these
statistics include indications of arguments found to have material impact on
job execution or assigning to a computer based on those indications as
recited in claims 6, 12, and 18. App. Br. 8, Reply 4.
In connection with contention 3, the Examiner asserts that Krum
teaches selecting a computer to run a job based on job statistics for jobs run
in a similar environment on the same computer. Ans. 12. However, the
selection is based on which computer can complete the job soonest, not on
similarity of jobs. We agree with Appellants that Krum does not teach or
suggest that selection should be based on whether the server has run a job
with a similar job profile to that of the subject job to be assigned as per
claim 19. App. Br. 9.

CONCLUSIONS
The Examiner did not err in rejecting independent claim 1 or
independent claims 7 and 13, not separately argued, under 35 U.S.C.
§ 103(a). Accordingly, we affirm the Examiner’s rejection of claims 1, 7
and 13 and of claims 2-5, 8-11 and 14-17 dependent therefrom.
The Examiner has erred in rejecting claims 6 12, 18 and 19, each as
unpatentable as being obvious over the combination of Krum and Ferstl
under 35 U.S.C. § 103(a).

DECISION
The rejections of claims 1-5, 7-11 and 13-17 are affirmed.
The rejections of claims 6, 12, and 18-19 are reversed.

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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

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