Ex Parte Patrizio et al

Board of Patent Appeals and Interferences

Jun 22, 2012

11248468 (B.P.A.I. Jun. 22, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JONATHAN PATRIZIO, FARID FAEZ, and VENU POLA
____________

Appeal 2009-015105
Application 11/248,468
Technology Center 2100
____________

Before JOSEPH F. RUGGIERO, BRUCE R. WINSOR,
and JENNIFER S. BISK, Administrative Patent Judges.

WINSOR, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-015105
Application 11/248,468

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Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-19, which constitute all the claims pending in this application. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Appellants’ invention relates to:
methods of forecasting functionality for clustered computing
configurations that may be deployed across computer network
systems and environments that may function in conjunction
with a wide range of hardware and software configurations.
An exemplary method of forecasting a forecast status of a
clustered computing system is presented including: creating a
current status model of the clustered computing system based
on a start data set; applying an event input set to the current
status model; and creating a forecast status based on the
applying the event input set to the current status model. In
some embodiments, the current status model may be
represented by: a configured operational status, a current
operational status, and a projected operational status of the
clustered computing system.
(Abstract). Claim 1, which is illustrative of the invention, reads as follows:
1. A method of forecasting a forecast status of a clustered
computing system comprising:
creating a current status model of the clustered
computing system based on a start data set;
applying an event input set to the current status model;
and
creating a forecast status based on the applying the event
input set to the current status model.
Claims 1-7 and 9-14 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Gupta (US 2005/0114379 A1; May 26, 2005; filed Nov. 24,
2003). (Ans. 3).
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Application 11/248,468

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Claims 8 and 15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Gupta in view of Wang (US 2003/0055948 A1; Mar. 20,
2003). (Ans. 7).
Claims 16-19 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Gupta in view of Official Notice. (Ans. 8).
Rather than repeat the arguments here, we refer to the Briefs (“App.
Br.”; “Reply Br.”) and the Answer (“Ans.”) for the respective positions of
Appellants and the Examiner. Only those arguments actually made by
Appellants have been considered in this decision. Arguments that
Appellants did not make in the Brief have not been considered and are
deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).

ISSUE
We summarize Appellants’ contentions as follows:
Gupta does not disclose “creating a current status model of the
clustered computing system based on a start data set” (emphasis added), as
recited in claim 1. (See generally App. Br. 13-16; Reply Br. 3-5).
Gupta does not disclose “applying an event input set to the current
status model; and creating a forecast status based on the applying the event
input set to the current status model” (emphasis added), as recited in claim
1, because Gupta does not disclose a “current status model.” (See generally
App. Br. 16-17; Reply Br. 5).
Wang, when combined with Gupta, does not cure the alleged
deficiencies of Gupta. (See generally App. Br. 18-20).
The Examiner’s Official Notice, when combined with Gupta, does not
cure the alleged deficiencies of Gupta. (See generally App. Br. 20-22).
Appeal 2009-015105
Application 11/248,468

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Based on Appellants contentions, we will decide the appeal by
reference to claim 1. The pivotal issue presented by Appellants’ contentions
is as follows: Does Gupta disclose “creating a current status model of the
clustered computing system based on a start data set” (emphasis added), as
recited in claim 1?

PRINCIPLES OF LAW
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987). “The identical invention must be shown in as
complete detail as is contained in the ... claim.” Richardson v. Suzuki Motor
Co., 868 F.2d 1226, 1236 (Fed. Cir. 1989). “These elements must be
arranged as in the claim under review, but this is not an ‘ipsissimis verbis’
test.” In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (citations omitted).

ANALYSIS
We have considered Appellants’ arguments (App. Br. 13-23; Reply
Br. 2-6) in light of the Examiner’s findings (Ans. 3-8) and explanations
(Ans. 9-11). We agree with the Examiner’s findings and explanations (Ans.
3-11) and adopt them as our own. The following analysis and comments are
provided for further emphasis.
Appellants contend “that Gupta neither shows the invention as
claimed by Appellants, nor does Gupta show the elements arranged as
required by Appellants claims.” (Reply Br. 5). We do not agree with
Appellants’ contention.
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The Examiner correctly finds (Ans. 4) that the claimed “start data set”
encompasses Gupta’s event information (Gupta Fig. 1, Ref. 104) and system
performance parameters (Gupta Fig. 1, Ref. 106) (see Gupta Fig. 1, 3;
¶ [0024]). “The event information preferably concerns the occurrence of
critical events that adversely affect the performance of the cluster or one of
its nodes and the system performance parameters preferably bear some
relationship to the potential occurrence of such a critical event.” (Gupta
¶ [0024]). In other words, one of ordinary skill in the art would have
understood Gupta’s system performance parameters, in particular, as
representing the initial or “current” operating conditions of the system for
which a forecast is to be made. Gupta emphasizes this understanding:
The collected information concerns critical events 104 that
occur in the system and system performance parameters 106
that relate to the conditions under which the system is
operating. More particularly, the system performance
parameters 106 relate to system state variables such as
temperature, central processing unit utilization, time, processor
number, user time, idle time, input/output time, etc.
(Gupta ¶ [0014]).
Appellants contend that “Gupta's ‘event information and system
performance parameters’ are not the same as Appellants’ ‘start data set’”
(App. Br. 15), but do not persuasively explain the alleged differences.
Appellants have, at most, demonstrated that Gupta uses different
terminology from claim 1 without persuasively identifying any substantive
import of the differences in terminology. However, anticipation “is not an
‘ipsissimis verbis’ test.” Bond, 910 F.2d at 832.
The Examiner further correctly finds (Ans. 4) that when Gupta’s event
information and system performance parameters are applied to Gupta’s
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Baysian Network Model (Gupta Fig. 1, Ref. 108) a model representative of
the initial status of the system for which a forecast is to be made, i.e., a
“current status model,” is created. Furthermore, the “current status model”
so created is created based on the event information and system performance
parameters, i.e., the “start data set.”
Appellants argue that Gupta’s Baysian Network Models “are created
from ‘algorithms such as linear time-series and wavelets,’ and not ‘event
information and system performance parameters’” (emphasis added). (App.
Br. 15). However, Appellants do not persuasively explain why the
application of Gupta’s event information and system performance
parameters to Gupta’s Baysian Network Model does not create a resulting
model (i.e., a “current status model”) that is based on the event information
and system performance parameters (i.e., the “start data set”). See Bond,
910 F.2d at 832. We agree with Appellants that Gupta’s Baysian Network
Model is disclosed as being created using “time-dependent variable
algorithms such as linear time-series and wavelets . . . to create models that
predict future values of the system performance parameters” (Gupta ¶
[0024]). However, we note that claim 1 does not preclude the recited
“current status model” from being created based on, or otherwise including,
information and algorithms in addition to the recited “start data set.”
Appellants arguments regarding the remaining recitations of claim 1
(App. Br. 16-17; Reply Br. 5) are based on the contentions discussed supra
and are unpersuasive for the same reasons.
Appellants have not persuaded us of error in the Examiner’s rejection
of claim 1. Accordingly, we will sustain the rejection of claim 1 and claims
2-7 and 9-14, which were not separately argued (see App. Br. 17-18).
Appeal 2009-015105
Application 11/248,468

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In arguing the patentability of claims 8 and 15, Appellants reiterate
the arguments made for claim 1and assert that Wang does not cure the
alleged deficiencies in Gupta. (App. Br. 19). In arguing the patentability of
claims 16-19, Appellants reiterate the arguments made for claim 1and assert
that the Examiner’s Official Notice does not cure the alleged deficiencies in
Gupta. (App. Br. 21-22). As we are not persuaded that the Examiner erred
in rejecting claim 1, we are similarly unpersuaded that the Examiner erred in
rejecting claims 8 and 15-19. Accordingly, we will sustain the rejection of
claims 8 and 15-19.

ORDER
The decision of the Examiner to reject claims 1-19 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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2010).

AFFIRMED

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