Ex Parte Kaminsky et al

Patent Trial and Appeal Board

Sep 13, 2018

15052316 (P.T.A.B. Sep. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
15/052,316 02/24/2016 David L. Kaminsky
73109 7590 09/17/2018
Cuenot, Forsythe & Kim, LLC
20283 State Road 7
Ste. 300
Boca Raton, FL 33498
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.
RSW920070078US2
8152-0266
CONFIRMATION NO.
4420
EXAMINER
NGUYEN, THAI
ART UNIT PAPER NUMBER
2469
NOTIFICATION DATE DELIVERY MODE
09/17/2018 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):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID L. KAMINSKY and JOHN M. LAKE
(Applicant: International Business Machines Corporation)
Appeal2017-010488
Application 15/052,316
Technology Center 2400
Before ALLEN R. MacDONALD, ROBERT E. NAPPI, and
NORMAN H. BEAMER, Administrative Patent Judges.
BEAMER, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of
claims 21-32. 1 Claims 1-20 are cancelled. We have jurisdiction over the
pending claims under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify International Business Machines Corporation as the
real party in interest. (App. Br. 1.)
Appeal2017-010488
Application 15/052,316
THE INVENTION
The claims are directed to configuring a network monitor by
translating service level objectives extracted from resource information
included in a newly installed network resource. (Abstract.) Claim 1,
reproduced below, is illustrative of the claimed subject matter:
21. A method for monitoring a data processing resource that is
newly added to a computer network, comprising:
detecting, within the computer network, a presence of the
newly added resource;
receiving, from the newly added resource, a performance
goal;
translating the performance goal into a monitoring policy
including
at least one event to be reported to a network
monitor, and
at least one rule for processing the at least one
event; and
monitoring, using the monitoring policy, the newly added
resource.
REJECTIONS
The Examiner rejected claims 22, 26, and 30 under 35 U.S.C. § 112,
first paragraph as failing to comply with the written description requirement.
(Final Act. 4.) However, this rejection is withdrawn. (Ans. 2-3.)
The Examiner rejected claims 21, 22, 25, 26, 29, and 30 under 35
U.S.C. § I03(a) as being unpatentable over Savit (US 2007/0234365 Al,
pub. Oct. 4, 2007) and Kaminsky et al. (US 2004/0117477 Al, pub. June 17,
2004). (Final Act. 5-7.)
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Application 15/052,316
The Examiner rejected claims 23, 24, 27, 28, 31, and 32 under 35
U.S.C. § I03(a) as being unpatentable over Savit, Kaminsky, and Parkyn
(U.S. 2005/0102675 Al, pub. May 12, 2005). (Final Act. 8-9.)
ISSUES ON APPEAL
Appellants' Appeal Brief raises the following issues: 2
First Issue: Whether the combination of Savit and Kaminsky teaches
or suggests the claim 21 limitation, "translating the performance goal into a
monitoring policy including at least one event to be reported to a network
monitor, and at least one rule for processing the at least one event," and
commensurate limitations of claims 25 and 29. (App. Br. 11-16.)
Second Issue: Whether the combination of Savit and Kaminsky
teaches or suggests the claim 22 limitation, "identifying, from a source
separate from the newly added resource, an additional performance goal
associated with a type of the newly added resource," and commensurate
limitations of claims 26 and 30. (App. Br. 16-17.)
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner has erred. We disagree with Appellants'
arguments, and 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. 5-9);
and (2) the reasons set forth by the Examiner in the Examiner's Answer in
2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed Feb. 10, 2017), Reply Brief (filed Aug. 7,
2017), Final Action (mailed Sep. 20, 2016), and the Answer (mailed June 5,
2017) for the respective details.
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Application 15/052,316
response to Appellants' Appeal Brief (Ans. 9-16), and concur with the
conclusions reached by the Examiner.
First Issue
In finding that Savit and Kaminsky teach or suggest the claim
limitation at issue, the Examiner relies on the disclosure in Savit of a
computer resource allocation system in which applications are associated
with service level goals, and the system is monitored to determine whether
the service level goals are met - if not, additional resources are allocated to
the application. (Final Act. 6; Savit Abstract, Figs. 3, 5, ,r,r 8-10, 24, 28-30,
4 2.) The Examiner also relies on the disclosure of Kaminsky of monitoring
computer network nodes for performance variations exceeding a
predetermined tolerance, and upon the occurrence of which, providing alerts
and implementing corrective actions. (Final Act. 6; Kaminsky Abstract, ,r,r
21-23.)
Appellants argue neither Savit nor Kaminsky, alone or in
combinations, teach or suggest "translating the performance goal into a
monitoring policy," as required by the claims. (App. Br. 12-14.) However,
as described above, Savit discloses allocating service level goals to
applications, monitoring the system to determine if those goals are met, and
allocating resources as needed. (Ans. 10-12.) In particular, when additional
applications, with new service level goals, are added to the workload of the
system, the monitoring and resource allocations take that into account
accordingly. (Savit Fig. 3, ,r,r 29-30.) We agree with the Examiner that this
disclosure teaches or suggests "translating the performance goal into a
monitoring policy." (Final Act. 6; Ans. 12.)
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Appeal2017-010488
Application 15/052,316
Appellants argue the Examiner fails to "explicitly identif-1y] the
claimed 'monitoring policy' or how this monitoring policy was generated by
being translated from a performance goal." (App. Br. 12.) However, as
stated above, Savit explicitly discloses monitoring whether or not service
level goals are met, and in response to such monitoring, allocating resources
accordingly. (Savit ,r 10.) Moreover, neither the claims nor the
specification impose any specific constraints as to how the performance
goals are translated into monitoring policies. (Ans. 13.) Savit discloses that
in response to the introduction into the system of new applications with new
service level goals, the system monitors to see if those new goals are met.
(Savit Fig. 3, ,r,r 29--30.) We agree with the Examiner that these disclosures
sufficiently teach or suggest the translation requirements of the claim. (Ans.
12-14.)
Appellants further argue the Examiner's reliance on Kaminsky is in
error because that reference does not translate a performance goal into a
monitoring policy. (App. Br. 14--15.) However, as set forth above, Savit
sufficiently teaches or suggests that aspect of the claims. Furthermore, the
Examiner relies on the combination of Savit and Kaminsky for the
disclosure of a "monitoring policy including at least one event to be reported
to a network monitor, and at least one rule for processing the at least one
event":
Savit appears to disclose certain teachings such as events to
reported and processing of events (i.e. applications not meeting
their SLs and respective fix), but these teachings were not very
clearly taught within the 4 comers of Savit. Hence the
inclusion of Kaminsky is to provide the clearest possible prior
art teaching of what's not expressly taught in Savit.
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Application 15/052,316
(Ans. 13.) The test for obviousness is whether the combination of
references, taken as a whole, would have suggested the patentee's invention
to a person having ordinary skill in the art. In re Keller, 642 F.2d 413, 425
(CCPA 1981).
Appellants also argue the Examiner's rationale for combining Savit
with Kaminsky is flawed because that rationale is sufficiently addressed by
Savit alone, and therefore one of ordinary skill would not have been
motivated to make the combination relied on. (App. Br. 15-16.) However,
as explained in the quotation above, the Examiner relies on Kaminsky to
confirm the teachings of Savit - both references reasonably teach the
required events to be reported and rules for processing the events. (Ans. 13.)
We note again that neither the claims nor the specification elaborate on the
nature of "events" or "rules" in this context. Moreover, Appellants do not
point to any evidence of record that the combination relied on would be
"uniquely challenging or difficult for one of ordinary skill in the art" or
"represented an unobvious step over the prior art." Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citingKSRint'l
Co. v. Teleflex Inc., 550 U.S. 398, 418-19 (2007)). The Examiner's findings
are reasonable because the skilled artisan would "be able to fit the teachings
of multiple patents together like pieces of a puzzle" because the skilled
artisan is "a person of ordinary creativity, not an automaton." KSR, 550 U.S.
at 420-21. We are persuaded the claimed subject matter exemplifies the
principle that "[ t ]he combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results." KSR, 550 U.S. at 416.
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Application 15/052,316
Therefore, we sustain the obviousness rejection of claims 21, 25,
and 29.
Second Issue
Dependent claims 22, 26, and 30 include the additional limitation,
"identifying, from a source separate from the newly added resource, an
additional performance goal associated with a type of the newly added
resource." (App. Br. 21, 22, 24.) In rejecting these claims, the Examiner
additionally relies on the disclosure in Savit of the ability of users or an
administrator to set service level goals, as opposed to such goals being
provided by an application itself. (Final Act. 7; Savit ,r,r 22, 23.)
Appellants argue Savit does not disclose such goals are "associated
with a type of newly added resource," and that such goals are created for the
first time, rather than being "additional" goals. (App. Br. 16-17.) However,
we agree with the Examiner that the disclosure in Savit of service level goals
being "set or tunable" by users or administrators sufficiently teaches or
suggests the limitation at issue. (Ans. 15-16; Savit ,r 22 (emphasis
supplied).)
Therefore, we sustain the obviousness rejection of claims 22, 26, and
30.
CONCLUSION
For the reasons discussed above, we sustain the Examiner's
obviousness rejections of claims 21, 22, 25, 26, 29, and 30 over Savit and
Kaminsky. In addition, we sustain the obviousness rejections of the
remaining claims 23, 24, 27, 28, 31, and 32 over Savit, Kaminsky, and
Parkyn, which rejections are argued solely based on the arguments discussed
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Application 15/052,316
above, concerning the claims from which these remaining claims depend,
and which rejections are not otherwise argued separately with particularity.
(App. Br. 17-18.)
DECISION
The Examiner's rejection of claims 21-32 is affirmed.
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
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