Ex Parte Jensen et al

Patent Trial and Appeal Board

Dec 11, 2015

12845303 (P.T.A.B. Dec. 11, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/845,303 07/28/2010
37945 7590 12/15/2015
DUKEW. YEE
YEE AND AS SOCIA TES, P.C.
P.O. BOX 802333
DALLAS, TX 75380
FIRST NAMED INVENTOR
Brian W. Jensen
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.
END920100032US1 9712
EXAMINER
LEE,BRYANY
ART UNIT PAPER NUMBER
2445
NOTIFICATION DATE DELIVERY MODE
12/15/2015 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):
ptonotifs@yeeiplaw.com
mgamez@yeeiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN W. JENSEN, MAURO MARZORATI,
BRIAN M. 0 'CONNELL, and KEITH R. WAL KER 1
Appeal2013-011025
Application 12/845,303
Technology Center 2400
Before ALLEN R. MacDONALD, HUNG H. BUI, and
AMBER L. HAGY, Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants identify International Business Machines Corporation as the
real party in interest. (Br. 2.)
Appeal2013-011025
Application 12/845,303
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-17 and 19-24.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Introduction
According to Appellants, the claimed invention pertains to "an
improved data processing system, and more specifically to a computer
implemented method, apparatus, and computer program product for
dynamically altering the delivery of web content to end users based on
current and projected server load." (Spec. i-f 1.)
Illustrative Claim
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method of delivering web content to a client
responsive to a request from the client, comprising:
collecting utilization metrics from a plurality of devices
that deliver web content to end users;
determining, by one or more processors, individual load
levels for the devices, respectively, based on the respective
utilization metrics of the devices;
2 Claim 18 has been cancelled per the Amendment dated November 7, 2012,
and does not appear in the Claims Appendix on appeal nor is it argued by
Appellants. The Final Action, in the Office Action Summary, refers to only
claims 1-17 and 19-24 as currently pending. (Final Act. 1.) The
subsequent references by the Examiner to claim 18 in the Final Action (Final
Act. 14--15) and in the Examiner's Answer on appeal (Ans. 14--15) are,
therefore, deemed to be inadvertent.
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determining, by the one or more processors, a combined
load level of two or more of the devices of a same device type
based on the individual load levels for the two or more
respective devices in the subset of devices;
determining, by the one or more processors, a service
level to provide to the client based on the combined load level;
responsive to receiving the request from the client,
modifying a header in the request to specify a rate to deliver the
web content to the client based on the determined service level;
and
sending the request with the modified header to one of
the devices is directed to serve the web content to the client at
the specified rate.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Deshpande
John
Karasaridis
Bhatti
Muellner
US 2006/0047779 Al
US 2008/0270610 Al
US 2010/0125656 Al
US 8,200,837 Bl
US 2012/0176998 Al
Mar. 2, 2006
Oct. 30, 2008
May 20, 2010
June 12, 2012
July 12, 2012
Chen Ding, Shutao Zhang, and Chi-Hung Chi, A Framework of HTML
Content Selection and Adaptive Delivery, Springer Berlin Heidelberg, pp.
257-266 (2005) (hereafter "Ding").
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Application 12/845,303
REJECTIONS
(1) Claims 1, 2, 7, 8, 10, 11, 12, 16, 17, and 19-22 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Bhatti, Ding, and
Karasaridis. (Final Act. 3-9.)
(2) Claims 3---6 and 13-15 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Bhatti, Ding, Karasaridis, and John. (Final Act.
10-14.)
(3) Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bhatti, Ding, Karasaridis, and Deshpande. (Final Act. 14--
15.)
(4) Claims 23 and 24 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Bhatti, Ding, Karasaridis, and Muellner. (Final Act.
15-16.)
ISSUES
Did the Examiner err in finding the combination of Bhatti, Ding, and
Karasaridis teaches or suggests the invention as recited in claim 1, 3
including the following features:
( 1) "determining, by one or more processors, individual load levels
for the devices, respectively, based on the respective utilization metrics of
3 Appellants collectively argue the rejection of all claims with regard to the
Examiner's obviousness rejection of claim 1 under 35 U.S.C. § 103(a).
Appellants do not present separate substantive arguments for independent
claims 11 or 20, but argue patentability of those claims "for at least the same
reasons" as argued for claim 1. (Br. 19.) Appellants also address the
dependent claims only by referencing the arguments for their "base claim."
(Br. 20-21 ). Thus, the rejection of these claims also turns on our decision as
to claim 1. Except for our ultimate decision, claims 2-24 are not discussed
further herein. See 37 C.F.R. § 41.37(c)(l)(iv).
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the devices"·
'
(2) "determining, by the one or more processors, a combined load
level of two or more of the devices of a same device type based on the
individual load levels for the two or more respective devices in the subset of
devices"·
'
(3) "determining, by the one or more processors, a service level to
provide to the client based on the combined load level";
( 4) "responsive to receiving the request from the client, modifying
a header in the request to specify a rate to deliver the web content to the
client based on the determined service level"; and
( 5) "sending the request with the modified header to one of the
devices is directed to serve the web content to the client at the specified
rate."
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments the Examiner has erred. We disagree with Appellants'
conclusions and we adopt as our own: (1) the findings and reasons set forth
by the Examiner in the action from which this appeal is taken (Final Act. 3-
17); and (2) the reasons set forth by the Examiner in the Examiner's Answer
in response to Appellants' Appeal Brief. (Ans. 2-19.) We concur with the
conclusions reached by the Examiner.
Appellants structure their arguments according to the last five
limitations of claim 1, which Appellants label as "Feature[s]" 1-5. (Br. 11.)
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We address each argued limitation in tum and highlight the following for
emphasis. 4 (See also Ans. 17-19.)
A. "determining, by one or more processors, individual load levels
for the devices, respectively, based on the respective utilization
metrics of the devices "
Turning first to so-called "Feature (1 ),"the Examiner finds Bhatti
discloses "determining, by one or more processors, individual device load
levels for the device based on the utilization metrics." (Ans. 2 citing Bhatti,
col. 9, 11. 15-25.)
Appellants characterize "[t]his feature clearly teaches using the
respective utilization metrics of each device in a number of the devices to
determine individual load levels for the devices. Further, as indicated, more
than a single metric for a device is used in determining an individual load
level for a device." (Br. 15 (emphases added).)
Appellants acknowledge Bhatti discloses a load monitor 32 using a
number of monitoring mechanisms to monitor the load condition of a
content server 31, shown in Figure 2. (Br. 16.) However, Appellants argue
the faithful server load estimate is based on useful work (i.e., serving client
requests), rather than the aggregated utilization. (Id.) Accordingly,
Appellants argue Bhatti teaches away from Appellants' claimed "respective
utilization metrics of the devices because Bhatti views the aggregated
utilization as not a faithful server load estimate." (Id.)
4 Only those arguments made by Appellants have been considered in this
decision. Arguments Appellants did not make in the briefs have not been
considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv).
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We are not persuaded of Examiner error. Appellants' argument
regarding the lack of teaching or suggestion in Bhatti of determining load
levels based on "more than a single metric for a device" (Br. 15 (emphasis
added)) fails at the outset because it is premised on a limitation not
appearing in the claims. See In re Self, 671F.2d1344, 1348 (CCPA 1982).
Although claim 1 recites the plural "utilization metrics," it does so in
reference to "a plurality of devices." Thus, the broadest reasonable
interpretation of the claims does not exclude the possibility of only a single
metric collected for each device. Appellants' argument that Bhatti "teaches
away" from using "aggregated utilization" metrics (Br. 16) similarly fails as
arguing outside the scope of the claims. The claims do not require collecting
"aggregated" metrics for each device.
Appellants' arguments regarding Bhatti are also unpersuasive as
failing to address the Examiner's rejection as issued. As the Examiner
correctly notes, the rejection is not premised on Bhatti teaching "aggregating
metrics from several servers," because "the system taught by Bhatti involves
a single server with a single utilization." (Ans. 17.) The Examiner further
correctly finds, however, "[t ]he principles of monitoring of a load condition
taught by Bhatti on a single server would also apply to each server in a
group of servers." (Id.) Appellants have not rebutted this finding.
For the foregoing reasons, we are unpersuaded of error in the
Examiner's finding the combination of Bhatti, Ding, and Karasaridis teaches
or suggests "determining, by one or more processors, individual load levels
for the devices, respectively, based on the respective utilization metrics of
the devices," as recited in claim 1.
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B. "determining, by the one or more processors, a combined load
level of two or more of the devices of a same device type based
on the individual load levels for the two or more respective
devices in the subset of devices"
With regard to so-called "Feature (2)," Appellants argue "[t]he feature
clearly teaches a combined load level of two or more of the devices of a
same device type. The combination is accordingly based on the individual
load levels for the two or more respective devices in the subset of devices."
(Br. 16 (emphasis added).) The Examiner cites Karasaridis, in combination
with Bhatti and Ding, as teaching or suggesting this limitation, finding in
particular Karasaridis "discloses monitoring utilization of a set of servers in
a preferred server group based on the utilization of each server." (Final Act.
5 citing Karasaridis i-f 30.)
Appellants acknowledge Karasaridis discloses "logical groupings of
servers" that "can include a set of preferred servers and one or more sets of
non-preferred servers." (Br. 16-17.) Appellants argue the Examiner's
reliance on Karasaridis is in error, however, because "[t]he groupings of the
disclosure of Karasaridis are not required to be of a same device type
because the members are grouped by preference and within a non-preference
may have a different priority." (Br. 17 (emphases added).)
Appellants' arguments are not persuasive of Examiner error because
they are premised on a limitation not found in the claims. As the Examiner
correctly notes, "the claimed subject matter only requires that the servers be
of the same type, not the same priority." (Ans. 18 (emphasis added); see
also Karasaridis i-f 30.) As the Examiner further correctly finds, in
Karasaridis, "the servers are of the same type, that of preferred or non-
preferred." (Ans. 18.) This finding is also within the broadest reasonable
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interpretation of "same device type" consistent with the Specification, which
states:
A server is a same device type as another server if its physical
and logical attributes match those specified in the device type
attributes specified by an administrator. Examples of physical
attributes include the hardware class . . . [and examples] of
logical attributes include the operating system ....
(Spec. i-f 53 (emphasis added).)
For the foregoing reasons, we are unpersuaded of error in the
Examiner's finding the combination of Bhatti, Ding, and Karasaridis
teaches or suggests "determining, by the one or more processors, a
combined load level of two or more of the devices of a same device type
based on the individual load levels for the two or more respective devices in
the subset of devices," as recited in claim 1.
C. "determining, by the one or more processors, a service level to
pr·ovide to tlie clierzt based orz tlie co111birzed load level"
With regard to so-called "Feature (3)," the Examiner finds Bhatti
discloses determining a "'service level"' (that is, delivering "'full_content"'
or "'degraded_content"') "'based on the system load level."' (Ans. 18 citing
Bhatti, col. 6, 11. 7-30.) Appellants, however, argue Bhatti "teaches creation
of different access paths" for delivering each of"' /full_content "' or
"'/degraded_content."' (Br. 17 (emphasis added).) Appellants contend,
therefore, Bhatti "does not determine a service level as is claimed" because
"Bhatti discloses causing the access requests to access the corresponding file
from one of several alternative content qualities for delivery in accordance
with the load conditions." (Br. 18 (italicized emphases added).)
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Appellants' arguments regarding Bhatti's manner of delivery of
content do not find anchor in the claims, and hence are not persuasive of
Examiner error. As the Examiner correctly finds, "the quality of the
content" provided by Bhatti, "i.e.[,] 'full_content' or 'degraded_content'
teaches the level of service that the client will receive." (Ans. 18 (emphasis
added).) As the Examiner further correctly finds, the "quality of the
content" disclosed in Bhatti (i.e., "full" versus "degraded") is consistent with
the teachings of Appellants' Specification regarding a "service level," which
states "[a] service level is a label that describes the level of end user
experience that the service is providing at any given time, wherein each level
of service may provide more or less web content and features to the end user
than another level of service." (Spec. i-f 56 (emphasis added).) Bhatti further
discloses the quality of the content delivered ("full" or "degraded") is
determined based on "the load conditions." (Bhatti, col. 6, 11. 55-66; Final
Act. 3.) For example:
When the adaptive load control system 40 detects that the
content server 31 is in the overload conditions, the adaptive
load control system 40 causes the incoming access requests to
the content server 31 to access the corresponding content files
in the degraded format which is less resource-intensive to
serve.
(Bhatti, col. 6, 11. 61---66 (emphases added); Final Act. 3.)
For the foregoing reasons, we are unpersuaded of error in the
Examiner's finding that Bhatti teaches or suggests "determining, by the one
or more processors, a service level to provide to the client based on the
combined load level," as recited in claim 1.
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D. "responsive to receiving the request from the client, modifj;ing
a header in the request to specify a rate to deliver the web
content to the client based on the determined service level"
With regard to so-called "Feature (4)," the Examiner relies on a
combination of Bhatti and Ding as disclosing the disputed limitation. (Final
Act. 4; see also Ans. 18-19.) In particular, the Examiner finds "Bhatti
teaches modifying the URL of a request . . . . Modifying the URL of a
request would generally require modifying the header of the request." (Ans.
19.) The Examiner further notes that the rejection "also cited Ding which
expressly teaches modifying the header of the request." (Id.) As discussed
in supra in section C, Bhatti discloses providing "full" or "degraded"
content depending on server load level. (Bhatti, col. 6, 11. 61---66.)
Appellants do not dispute the cited art teaches or suggests modifying a
header in the request, but argue the header modification fails to "specify a
rate to deliver the web content to the client based on the determined service
level." (Br. 18 (emphasis added.).) \Ve disagree. As the Examiner correctly
finds, the combination of Bhatti and Ding teaches "specify[ing] a rate"
because "[b ]y modifying the header to include a URL to the degraded
content, the request specifies to the server which content to receive at either
the full or degraded level." (Ans. 19.) We agree the Examiner's findings
regarding the combined teachings of Bhatti and Ding are supported by the
disclosures of those references.
We further agree the Examiner's findings are within the broadest
reasonable interpretation of "specify a rate" consistent with the teachings of
the Specification. In particular, the Specification discloses modifying the
header of the request "to specify the content variant that should be delivered
to the end users .... " (Spec. i-f 59 (emphasis added); see also i-f 67.) The
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Specification further discloses that delivery of a "content variant" (or
"service level") may be at a higher quality, higher bit rate "full web content"
or at a lower quality "low bit rate" level with reduced graphics. (Spec. i-f 56.)
Thus, consistent with Appellants' Specification, "specify[ing] a rate" is
reasonably interpreted to include specifying the quality of content delivered,
thus encompassing the combined teachings of Bhatti and Ding, as the
Examiner correctly finds.
For the foregoing reasons, we are unpersuaded of error in the
Examiner's finding the combination of Bhatti and Ding teaches or suggests
"responsive to receiving the request from the client, modifying a header in
the request to specify a rate to deliver the web content to the client based on
the determined service level," as recited in claim 1.
E. "sending the request with the modified header to one of the
devices is directed to serve the web content to the client at the
·t; A t " spec& ze""' raf/e
With regard to so-called "Feature (5)," Appellants argue the
Examiner's findings are in error because "Bhatti discloses selection of a less
resource-intensive content format," and further argue "[t]he use of the less
resource-intensive content format does not inherently imply a specific rate at
which to serve the web content to the client as claimed." (Br. 19 (emphasis
added).) We are unpersuaded by this argument for at least the reason that it
relies on an unreasonably narrow reading of the claims as requiring
specifying a particular bit rate. As noted supra, the claims are not so
limited, but are reasonably interpreted as encompassing specifying the
quality of content delivered-that is, at a relatively higher or lower rate,
without specifying a particular rate. And as the Examiner correctly finds,
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the "full and degraded content" disclosed in Bhatti "correspond to a full or
degraded rate to deliver to [sic] the content." (Ans. 19 citing Bhatti, col. 9,
11. 45-50.)
For the foregoing reasons, we are unpersuaded of error in the
Examiner's finding Bhatti teaches or suggests "sending the request with the
modified header to one of the devices is directed to serve the web content to
the client at the specified rate," as recited in claim 1. 5
5 We additionally note this limitation is unclear on its face with regard to
what "is directed." Appellants interpret this limitation thusly: "The claimed
feature clearly sends the request with the modified header to one of the
devices. The one device is directed to serve the web content to the client at
the specified rate." (Br. 19 (emphasis added).) The Examiner treats the
limitation accordingly in finding Bhatti teaches or suggests this limitation.
(Ans. 19.) We have adopted the same interpretation in sustaining the
Examiner's rejection over the prior art. Should there be further prosecution
of this application, however, we leave it to the Examiner and Appellants to
further review this claim with regard to potential ambiguities and
compliance with 35 U.S.C. § 112.
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DECISION
For the above reasons, the Examiner's rejection of claims 1-17 and
19-24 is affirmed. 6
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
gvw
6 As the Examiner has shown that all claims are unpatentable under
35 U.S.C. § 103(a), \Ve do not also reject i\.ppellants' claims 11-24, which
recite a "computer readable storage device," under 35 U.S.C. § 101 as not
being directed to patent-eligible subject matter. However, should there be
further prosecution with respect to claims 11-24, the Examiner's attention is
directed to Ex parte Shealy, No. 2006-1601, 2007 WL 1196758 at *21
(BPAI April 23, 2007) (Informative), where the Board sustained the
Examiner's rejection of the claims under 35 U.S.C. § 101 as being directed
to non-statutory subject matter because the Specification expressly stated
that "the computer-readable medium could even be paper." Shealy at 19.
As the Board noted, "[d]espite Appellant's explanation that the printed
matter will eventually be converted (by scanning, compiling, and
interpreting) into a functional computer component, the claim before us does
not contain that component, nor are these three steps[/]functions performed
by the claimed 'medium."' Id. at 39. Similarly, here, Appellants' claims
11-24 recite a "computer readable storage device," and the Specification
states that "the computer-usable or computer-readable medium could even
be paper or another suitable medium upon which the program is printed ...
. " (Spec. if 17 (emphasis added).)
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