Ex Parte McGee et al

Board of Patent Appeals and Interferences

Sep 10, 2012

11048524 (B.P.A.I. Sep. 10, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL SEAN MCGEE, MARK RICHARD ENSTONE,
MICHAEL SEAN MCINTYRE, GREGORY THOMAS HOWARD, and
MARK CHRISTOPHER STRATTON
____________

Appeal 2010-001664
Application 11/048,524
Technology Center 2400
____________

Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and
ANDREW J. DILLON, Administrative Patent Judges.

DILLON, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-56. App. Br. 2. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.

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STATEMENT OF THE CASE
Appellants’ invention is directed to a method and system for resource
allocation on a computer system. See Spec. 59, Abstract of the Disclosure.
Claim 1 is illustrative, with key disputed limitations emphasized:
1. A method of dynamically allocating and
configuring network resources of a computer system, said
method comprising:

initially allocating the network resources among one or
more teams and a pool;

establishing one or more usage policies for at least one
of the one or more teams;

continuously monitoring usage of the network resources
to identify actionable resource usage conditions; and

reconfiguring the network resources in accordance with
the one or more usage policies in response to the actionable
resource usage conditions.

The Examiner relies on the following as evidence of unpatentability:
Wolff US 6,044,367 Mar. 28, 2000
McIntyre US 6,229,538 B1 May 8, 2001
Tran US 6,658,018 B1 Dec. 2, 2003
Firoiu US 6,917,585 B1 July 12, 2005
(filed May 25, 2000)
Elzur US 2005/0080923 A1 Apr. 14, 2005
(filed Sep. 10, 2004)

Broadcom, Inc., Broadcom NetXtremeTM Gigabit Ethernet Teaming,
White Paper BCM570X (July 9, 2003) (hereinafter “Broadcom”).
Broadcom, Inc., Broadcom NetXtremeTM Gigabit Ethernet Adapter
User’s Guide, Release:2CS5700-UM202-R, (Feb. 26, 2003) (Version 6.6.x)
(hereinafter “BACS”).
Cisco Systems, Inc., Software Configuration Guide, Software Release
6.2, Copyright 2000-2001(hereinafter “Cisco”).
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THE REJECTIONS
1. The Examiner rejected claims 1 and 2 under 35 U.S.C. §103(a)
as unpatentable over Broadcom. Ans. 3-5.1
2. The Examiner rejected claims 3, 8, and 25 under 35 U.S.C.
§103(a) as unpatentable over Broadcom and Tran. Ans. 5-7.
3. The Examiner rejected claims 4-7, 10, 12, 16, 20, 24, and 26-46
under 35 U.S.C. § 103(a) as unpatentable over Broadcom and BACS. Ans.
7-24.
4. The Examiner rejected claims 47-54 under 35 U.S.C. §103(a)
as unpatentable over BACS. Ans. 24-28.
5. The Examiner rejected claim 9 under 35 U.S.C. §103(a) as
unpatentable over Broadcom, Wolff, and McIntyre. Ans. 28-30.
6. The Examiner rejected claim 11 under 35 U.S.C. §103(a) as
unpatentable over Broadcom, BACS, and Wolff. Ans. 30.
7. The Examiner rejected claim 13 under 35 U.S.C. §103(a) as
unpatentable over Broadcom, Tran, Wolff, and McIntyre. Ans. 30-32.
8. The Examiner rejected claims 14, 15, and 21-23 under 35
U.S.C. §103(a) as unpatentable over Broadcom, Tran, and BACS. Ans. 32-
36.
9. The Examiner rejected claims 17 and 18 under 35 U.S.C.
§103(a) as unpatentable over Broadcom and Firoiu. Ans. 36-37.
10. The Examiner rejected claim 19 under 35 U.S.C. §103(a) as
unpatentable over Broadcom, McIntyre and Elzur. Ans. 37-38.

1 Throughout this opinion, we refer to the Appeal Brief filed May 15, 2009;
the Examiner’s Answer mailed July 9, 2009; and, the Reply Brief filed
September 8, 2009.
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11. The Examiner rejected claims 55 and 56 under 35 U.S.C.
§103(a) as unpatentable over BACS and Cisco. Ans. 38-40.

ISSUES
Based upon our review of the record, the arguments proffered by
Appellants and the findings of the Examiner, we find the following issues to
be dispositive of the claims on appeal:
1. Under § 103, has the Examiner erred in rejecting claims 1 and 2
by finding that Broadcom teaches or suggest “establishing one or more
usage policies” and “continuously monitoring usage of the network
resources to identify actionable resource usage conditions” as set forth in
claim 1?
2. Under § 103, has the Examiner erred in rejecting claims 41 and
42-46 by finding that Broadcom and BACS teach or suggest “a resource
allocation application configured…to identify one or more actionable
resource usage conditions based on usage policies defined by a set of
extensible rules and to reconfigure the teams in accordance with the
actionable resource usage conditions” as set in claim 41?
3. Under § 103, has the Examiner erred in rejecting claims 47-54
by finding that BACS teaches or suggest “establishing one or more usage
policies” and “continuously monitoring usage of the network resources to
identify actionable resource usage conditions” as set forth in independent
claims 47, 49, and 50?

ANALYSIS
Appellants argue, with respect to claim 1, that Broadcom fails to teach
or suggest “establishing one or more usage policies” and “continuously
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monitoring usage of the network resources to identify actionable resource
usage conditions” as set forth in claim 1. App. Br. 9-13, Reply Br. 2-4.
The basis for Appellants’ assertion is a belief that the Examiner has
impermissibly broadened the definitions of “usage policy” and “actionable
resource usage condition” as utilized in claim 1, equating “usage policy”
with Broadcom’s “load-balancing technique” and “actionable resource usage
condition” with Broadcom’s monitoring of a port to detect a link loss. App.
Br. 11-13, Reply Br. 2-5.
The Examiner finds that “usage policies,” when viewed in light of
Appellants’ Specification (¶[0081]) merely discloses how resources are to be
utilized, and that Broadcom teaches the reassignment of the load among
team members when a link loss occurs, which reads on Appellants’
“establishing one or more usage policies.” Ans. 40-41.
Similarly, the Examiner finds that an “actionable resource usage
condition,” when viewed in light of Appellants’ Specification (¶[0074])
merely discloses monitoring demand (usage conditions) placed on resources
and reacting to demand by reconfiguring those resources. Ans. 45
Consequently, the Examiner finds that Broadcom discloses both
“usage policies” and an “actionable resource usage condition” since
Broadcom discloses a “usage policy” whereby when one member of a team
is lost, due to link failure, the team loads are reevaluated and re-distributed
to the remaining team members, and also monitoring for an “actionable
resource usage condition” since the loss of the link must be detected. Ans.
43-46.
We find the Examiner’s position persuasive. “During examination,
the claims must be interpreted as broadly as their terms reasonably allow.”
MPEP § 2111.01. I (citing to In re American Academy of Science Tech
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Center, 367 F.3d 1359, 1369, (Fed. Cir. 2004)). “This means that the words
of the claim must be given their plain meaning unless the plain meaning is
inconsistent with the specification.” Id. (citing to In re ZIetz, 893 F.2d 319,
321 (Fed. Cir. 1989); Chef America, Inc. v. Lamb-Weston, Inc., 358 F.3d
1371, 1372 (Fed. Cir. 2004)). The Examiner’s interpretations of “usage
policies” and “actionable resource usage condition” are not unreasonably
broad and, as a result, we find that Broadcom teaches or suggests
“establishing one or more usage policies” and “continuously monitoring
usage of the network resources to identify actionable resource usage
conditions” as set forth in representative claim 1. Therefore, the Examiner
did not err in rejecting representative claim 1, and claims 2-8, 10, 12, 16, 20,
and 24-40 which were not argued with particularity.
Appellants also argue that Broadcom fails to teach or suggest “a
resource allocation application” which is configured to “identify one or more
actionable resource usage conditions based on usage policies defined by a
set of extensible rules and to reconfigure the teams in accordance with the
actionable resource usage conditions” as set in claim 41. App. Br. 16. The
basis for Appellants’ argument is the alleged failure of Broadcom to teach or
suggest “usage policies” and an “actionable resource usage condition” as set
forth above with regard to claim 1.
For the same reasons, we set forth above with regard to claim 1, we
find the Examiner did not err in rejecting claims 41-46.
Finally, with respect to claims 47-54, Appellants argue that BACS
fails to teach or suggest “establishing one or more usage policies” and
“continuously monitoring usage of the network resources to identify
actionable resource usage conditions” as set forth in independent claims 47,
49, and 50.
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The Examiner finds that BACS, in a manner similar to that disclosed
within Broadcom, discloses, at pages 17-18 and 22, that where the system
load is divided among team members and a failure occurs, the load of each
team is reevaluated and distributed among the remaining team members.
Ans. 52-53.
We concur with the Examiner’s finding, and we find that BACS
teaches or discloses both “usage policies” and “continuously monitoring
usage of the network resources to identify actionable resource usage
conditions” based upon an interpretation which is consistent with our finding
above regarding Broadcom.
Consequently, we find the Examiner did not err in rejecting claims 47-
54 by finding that the monitoring of failures within BACS and the
redistribution of the load among remaining team members discloses both
“usage policies” and “continuously monitoring usage of the network
resources to identify actionable resource usage conditions.”
Further, as Appellants have not separately argued with particularity
the patentability of claims 9, 11, 13-15, 17-19, 21-23, 55, and 56, those
claims fall as well, for the reasons set forth above.

CONCLUSION
The Examiner did not err in rejecting claims 1-56 under § 103.

ORDER
The Examiner’s decision rejecting claims 1-56 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)(1)(iv).

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AFFIRMED

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