Ex Parte Rolia et al

Patent Trial and Appeal Board

Jun 6, 2016

12815203 (P.T.A.B. Jun. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/815,203 06/14/2010 Jerome Rolia
56436 7590 06/08/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82262426 1900
EXAMINER
GOLDBERG, IV AN R
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
06/08/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEROME ROLIA, MUSTAZIRUL ISLAM, and
SHIV A PRAKASH SM
Appeal2013-010312
Application 12/815,203 1
Technology Center 3600
Before ANTON W. PETTING, KENNETH G. SCHOPPER, and
SHEILA F. McSHANE, Administrative Patent Judges.
McSHANE, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's decision to reject claims 1-16 and 18-20. We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to the Appellants, the real party in interest is Hewlett-Packard
Development Company, LP. Appeal Brief filed April 22, 2013, hereafter
"App. Br.," 2.
Appeal2013-010312
Application 12/815,203
BACKGROTJND
The invention relates to creating a reusable capacity planning scenario
template. Specification, hereafter "Spec.," 2, 11. 18-19, Abstract. The
invention includes assigning minimum and maximum constraint values to
resources within the system topology. Spec., 2, 11. 23-25, Abstract.
Representative claim 1 is reproduced from page 27 of the Claim
Appendix of the Appeal Brief (Claims App'x) as follows, with emphasis
added to relevant claim limitations:
1. A method for creating a reusable capacity planning scenario
template, comprising:
maintaining a system topology model of resources in a
configuration management database, wherein the
topology model includes at least one computing device
and at least one facility in which the computing device is
used;
assigning with a computing system minimum and
maximum constraint values to resources within the
system topology, wherein the constraints comprise
maximal or minimal limits on at least one of how, when,
and where workloads may be used with regards to the
resources;
identifying resources within the system topology model
to include in the reusable capacity planning scenario
template;
projecting the identified resources into a data mart; and
creating the reusable capacity planning scenario
template using a scenario planner based on the topology
model and constraints of the identified resources in the
data mart.
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Application 12/815,203
In the Final Rejection, the Examiner rejects claims 1--4 under 35
U.S.C. § 103(a) as obvious over Lubrecht2 and Oslake. 3 The Examiner also
rejects claims 5, 7, 8, 10, 11, 13-15, 18, and 19 under 35 U.S.C. § 103(a) as
obvious over Lubrecht, Oslake, and Applicants' Admitted Prior Art. Claims
6, 9, 12, 16, and 20 are rejected under 35 U.S.C. § 103(a) as obvious over
Lubrecht, Oslake, Applicants' Admitted Prior Art, and Faihe. 4 Final Action,
hereafter "Final Act.," 12-56, mailed November 21, 2012; see, also,
Answer, hereafter "Ans." 4--47, mailed June 12, 2013. 5
DISCUSSION
For the rejection of claims 1--4, the Appellants present arguments
directed only to independent claim 1. App. Br. 9-18. We will address
claims in a similar manner, using claim 1 as representative of the group. For
claims 6, 9, 12, 16, and 20, the Appellants present similar arguments to
claim 1, and we will address those issues with claim 1 as representative. See
id. at 24--26.
For the rejection of claims 5 and 7, the Appellants argue that
Appellants' Admitted Prior Art fails to cure the deficiencies of Lubrecht and
Oslake identified in claim 1, and there is no argument presented based on the
allegation that the additional limitations of claims 5 and 7 are not disclosed
in the prior art, save for the conclusory statement that "[t]he Appellants do
2 US Publication2006/0161883 Al, published July 20, 2008.
3 US Publication 2008/0262823 Al, published October 23, 2008.
4 US Publication 2008/0263084 Al, published October 23, 2008.
5 Rejections under 35 U.S.C. § 112, first paragraph and 35 U.S.C. § 101
were withdrawn by the Examiner in the Answer and Final Rejection. See
Ans. 3.
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Application 12/815,203
not concede the definition of tag as a reference to information." App. Br.
18, 19. For claim 15, the Appellants also present a conclusory statement that
some limitations are not disclosed in the prior art. Id. at 22-24. Issues that
Appellants address in a conclusory fashion, without presenting any related
arguments, are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv); In re
Lovin, 652 F.3d 1349 (Fed. Cir. 2011). In the Appeal Brief, the Appellants
also only present conclusory arguments for claim 8, and then in the Reply
Brief, the Appellants present arguments for the first time that could have
been earlier raised. 6 See id. at 19-21; Reply Brief, hereafter "Reply Br.," 4--
5, mailed August 8, 2013. The arguments are deemed waived pursuant to 37
C.F.R. §§ 41.41(b)(2) and 41.37(c)(l)(iv). See also Hyatt v. Dudas, 551
F.3d 1307, 1314 (Fed. Cir. 2008). For the claims 6, 9, 12, 16, and 20, the
Appellants argue that Faihe fails to remedy the deficiencies of the prior art
identified for independent claims 1, 8, and 15, with all the issues falling
within those raised for claim 1. Id. at 24--26. We therefore need only
address the common arguments presented as to claim 1.
The Appellants allege that the prior art fails to teach the limitations of
"assigning ... minimum and maximum constraint values to resources within
the system topology," "projecting the identified resources into a data mart,"
and "creating the reusable capacity planning scenario template using a
scenario planner based on the topology model and constraints of the
identified resources in the data mart" recited in claim 1. App. Br. 11-18.
6 The Appellants rely on the arguments presented for independent claims 8
and 15, with claims 9-14, 16, and 18-20 standing or falling with them.
App. Br. 24.
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Application 12/815,203
As to the claim 1 limitation, "assigning ... mm1mum and maximum
constraint values to resources within the system topology," the Appellants
argue that the Examiner fails to identify a single constraint value that limits
at least one of how, when, and where workloads may be used and that is
assigned to a resource, and also fails to disclose a constraint value assigned
to a resource that is limited as claimed. App. Br. 12. The Appellants also
assert that Lubrecht, the prior art the Examiner relies upon, "merely
disclose[s] measuring or anticipating load or utilization of a system," and
facilitates optimization techniques, but that "analyzing the use and service of
a resource ... does not provide maximum and minimum constraint values."
Id. at 13-14. The Appellants additionally argue that Oslake fails to cure this
deficiency because, while it may disclose performance and configuration
data, it fails to disclose separate minimum and maximum constraint values.
App. Br. 14--15; Reply Br. 2. More specifically, the Appellants allege that
"it is the system in Lubrecht that operates under the maximum load
conditions and not the resources as specified in independent claim 1."
Reply Br. 2 (emphasis in original).
As to the claim 1 limitation, "projecting the identified resources into a
data mart," the Appellants allege that the Examiner relies upon the
disclosure of the configuration management database ("CMDB") of
Lubrecht as maintaining the topology model of resources, and its capacity
management database ("CDB") discloses the limitation at issue. App. Br.
15. The Appellants assert that these assertions are incompatible, and in
order to support the rejection, "Lubrecht must disclose that the resources
identified in the CMDB are the same resources projected into the CDB." Id.
at 16.
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Appeal2013-010312
Application 12/815,203
As to the claim 1 limitation, "creating the reusable capacity planning
scenario template using a scenario planner based on the topology model and
constraints of the identified resources in the data mart," the Appellants assert
that Lubrecht does not disclose a model that is based on the topology model
and constraints of the identified resources in the data mart, or that constraints
are used to build the model. App. Br. 17. Instead, the Appellants argue that
Lubrecht discloses that CDB recorded performance information is used for
building the model, and not constraint values. Id. The Appellants allege
that the Examiner fails to refer to any of Lubrecht's disclosures that assign
minimum and maximum constraint values, or address the relationship
between constraints or the creation of the reusable capacity scenario
template. Id. at 17-18.
Upon consideration of the evidence on this record in light of the
arguments advanced by the Appellants, we find that the Appellants have not
identified reversible error in the Examiner's determination that claim 1 is
obvious under 35 U.S.C. § 103(a). Accordingly, we sustain the Examiner's
rejection of the representative claim for the reasons set forth in the Final
Action and the Answer. We add the following primarily for emphasis.
As to the "assigning ... " step of claim 1, the Examiner finds that
Lubrecht discloses components that are correlated with specific workloads,
and the correlations are used to understand the constraints to the
performance of the services with the associated resources within the
topography. Ans. 5, 49 (citing Lubrecht i-f 265). The Examiner also finds
that Lubrecht discloses maximum load conditions for optimizing system
resources. Id.; Final Act. 3, 12 (citing Lubrecht i-f 106). Further, Oslake
discloses the use of a range of operating conditions that consider minimum
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Application 12/815,203
constraint values. Final Act. 3; Ans. 49 (citing Oslake ii 70). The Examiner
also finds that "[a ]ny operating conditions are going to limit at least one of
'how, when, and where' workloads are used with regards to the resources."
Final Act. 3.
We look to Lubrecht's disclosure where
This step 7 specifies what correlations are to be made between
various service components in order to meet targets for
workload, performance, and utilization. Output is typically in
spreadsheet or graphic format. The correlations, when
completed, will show what the performance is for a given
component at a specified workload (for instance, what is the
latency and CPU utilization at a workload of some number n
transactions per second. These correlations will help the
capacity planner understand the constraints to performance of
the service being analyzed.
Lubrecht i-f 265 (emphasis added).
The cited portion of Lubrecht teaches that components (resources
within the topography) are correlated to the workload targets and are used to
understand constraints on the performance of the services. We agree with
the Examiner that Lubrecht teaches how a workload may be used with
regards to resources, that is, by the disclosed correlations. And we also
agree that, with the correlations, setting maximal or minimal limits on
workloads would therefore serve to assign minimal or maximum constraint
values to resources. Additionally, one cannot show nonobviousness by
attacking references individually, as the Appellants have done, where the
rejections are based on combinations of references. See In re Keller, 642
7 This description of a step is under the heading, "Specify OLA/SLA/PT-
Based Stress-Testing Requirements."
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Application 12/815,203
F.2d413, 426(CCPA1981); In reAferck& Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
As to the "projecting ... "step of claim 1, the Examiner finds that
Lubrecht discloses resource information needs placed into the CMDB, and
the resources are identified to be included in a planning scenario template,
with resources projected into a data mart, that is, where relevant
performance information is placed in the data mart. Final Act. 4 (citing, in
part, Lubrecht i-f 104). The Examiner refers to Lubrecht's disclosure that
portions of the CDB can overlap or synchronize with other repositories such
as the CMDB. Id.; Ans. 51-52. As such, the Examiner finds that "[i]t does
not matter that Lubrecht can have other data being stored in the CDB." Ans.
52.
We do not find the Appellants argument as to the "projecting ... "step
to be persuasive because in our view the "data mart" can include other
data-such as that contained in Lubrecht's CDB--in addition to the identity
of the identified resource itself. The claim does not contain any limitations
requiring that the data in the data mart be limited to identity data only, for
instance. 8 As the Examiner notes, and we agree, Lubrecht discloses that
there is overlap of the data of the CDB with CMDB, and that data is related
to information on specific resources.
As to the "creating ... " limitation, we are not persuaded by the
Appellants' arguments that the prior art fails to disclose that the reusable
8 We also note, but do not rely upon, the Specification's disclosure that
"[t]he identified resources and historical facts regarding the resources, e.g.,
CPU or memory measurements, can be projected into a data mart." See
Spec., 2 :29-31. This disclosure is consistent with our view of the claim
limitation.
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capacity planning scenario is built using, in part, "constraints." See App. Br.
17-18. As discussed, supra, Lubrecht discloses the assignment of minimal
or maximum constraint values to the resources, and "identified resources in
the data mart" is also disclosed. As to the constraints of the resources
themselves, Lubrecht's "what-if' model considers, for instance, the
hardware specifications of the resources and the effect of the addition of new
resources in its capacity evaluation, thus, as the Examiner finds, the model
would therefore necessarily consider the constraints of the identified
resources. See Final Act. 5; Ans. 8 (citing Lubrecht i-fi-128, 107).
We therefore sustain the Examiner's obviousness rejection of
representative claim 1.
SUMMARY
The rejection of claims 1-16 and 18-20 under 35 U.S.C. § 103(a) is
affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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