Ex Parte Rolia et al

Patent Trial and Appeal Board

Mar 28, 2016

12815194 (P.T.A.B. Mar. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/815,194 06/14/2010 Jerome Rolia
56436 7590 03/30/2016
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.
82262429 1881
EXAMINER
GOLDBERG, IV AN R
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
03/30/2016 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
Appeal2013-010311
Application 12/815,1941
Technology Center 3600
Before PHILLIP J. HOFFMANN, CYNTHIA L. MURPHY, 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
final decision to reject claims 1-5, 7-11, and 13-16. 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 March 25, 2013, hereafter "App.
Br.," 2.
Appeal2013-010311
Application 12/815,194
BACKGROUND
The invention relates to creating a personalized capacity planning scenario
using a reusable capacity planning scenario template. Abstract; Specification,
hereafter "Spec.," 2, 11. 27-28. The invention includes the maintenance of a
system topology model that can include includes tags describing components and
constraints on components or resources within the system topology. Spec. 2,
11. 29-31.
Representative claim 1 is reproduced from page 16 of the Claim Appendix
of the Appeal Brief (Claims App'x) as follows, with emphasis added to relevant
claim limitations:
1. A computer-implemented method for creating a personalized capacity
planning scenario using a reusable capacity planning scenario template,
compnsmg:
maintaining a system topology model, including tags describing
components and constraints on components within the system
topology;
comparing the tags with a plurality of reusable capacity planning
scenario templates;
identifYing the capacities of the components based on at least one of
topology and services executing on the components;
replacing a portion of the system topology model with a reusable
capacity planning scenario template based on the identified capacities
using a computing system;
evaluating an impact of the replacement of the portion of the system
topology model; and
making a scenario recommendation based on the impact.
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Application 12/815,194
In a Final Rejection, the Examiner rejects claims 1-5, 7-11, and 13-16
under 35 U.S.C. 112, first paragraph.2 The Examiner also rejects claims 1-5, 7-11,
and 13-16 under 35 U.S.C. § 103(a) as obvious over Lubrecht3, Oslake,4 and the
Applicants' Admitted Prior Art. Final Action, hereafter "Final Act.," 6-31, mailed
November 26, 2012; see, also, Answer, hereafter "Ans." 3-28, mailed June 6,
2013.
DISCUSSION
The Appellants present arguments directed only to independent claim 1
which address issues common to all the other claims on appeal. App. Br. 6, 8-10.
We will address claims in a similar manner, using claim 1 as representative of the
group, and address the issues in tum based upon the grounds of rejection.
37 C.F.R. § 41.37(c)(l)(iv).
3 5 U.S. C. § 112, first paragraph, written description
The Examiner finds that claim 1 recites "replacing a portion of the system
topology model with a reusable capacity planning scenario template based on the
identified capacities using a computing system," but the Specification does not
provide support for any connection between "replacing" operation and "using a
computing system." Final Act. 7. More specifically, the Examiner emphasizes
that support for the specific claim limitation "replacing a portion of the system
topology model" was lacking in the as-filed application. Ans. 30.
For support of its possession of the claim limitation, the Appellants initially
refer only to limited portions of the Specification. App. Br. 8 (citing Spec. 2,
2 The current application was filed June 14, 2010, which is prior to the effective
date of the AIA (America Invents Act), and therefore the pre-AIA statute is
applicable.
3 US Publication2006/0161883 Al, published July 20, 2008.
4 US Publication 2008/0262823 Al, published October 23, 2008.
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Application 12/815,194
11. 27-29, 3, 11. 27-12, Fig. 1). In the Reply Brief, the Appellants additionally refer
to other portions of the Specification in support of the argument that the limitation
is disclosed. Reply Brief, hereafter "Reply Br." 3, mailed August 5, 2013 (citing
Spec. 13, 11. 19-33, 14, 11. 1-3, Figs. 1, 5).
The Appellants argue for the first time in the Reply Brief that additional
portions of the Specification should be considered, absent any showing of good
cause why the argument could not have been timely presented in the Appellants'
Appeal Brief. Although the Appellants' argument is untimely, and could be
deemed waived, we have considered the additional portions of the Specification
argued by the Appellants. See In re Hyatt, 211F.3d1367, 1373 (Fed. Cir. 2000).
Based on the newly-argued portions, we determine that the Specification contains
adequate support for the demonstration of the possession of the "replacing"
limitation. See Spec. 14, 11. 1-3. We therefore must reverse the Examiner's
rejection under§ 112, first paragraph, based upon lack of written description.
35 u.s.c. §103
The Appellants allege that the prior art fails to teach the limitation of
"identifying the capacities of the components based on at least one of topology and
services executing on the components ... [and] replacing a portion of the system
topology model with a reusable capacity planning scenario template based on the
identified capacities." App. Br. 10. More specifically, it is alleged that although
"Lubrecht may monitor resources for performance data," it "does not disclose that
the capacity of a component is identified based on the topology or services
executing on that component." Id. at 11. The Appellants further contend that the
Examiner's correlation of a model, "improperly conflates the Lubrecht model that
focuses on services with identifying the capacities of the components based on
services executing on the components," and does not identify the capacities based
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Application 12/815,194
on the services executing on the components. Id. at 11, 12. The Appellants also
allege that Lubrecht discloses that changes can be implemented to a model of an IT
environment, but it does not specifically teach the limitation of "replacing a portion
of the system topology model with a reusable capacity planning scenario template
based on the identified capacities," because, inter alia, there is no disclosure of
replacement with templates. Id. at 12-14. The Appellants also allege that Oslake
fails to remedy the deficiencies of Lubrecht in relation to the teaching of the
"identifying the capacities of components" and replacement "with a reusable
planning scenario template based on the identified capacities." Id. at 13-14.
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 this claim
for the reasons set forth in the Final Action and the Answer. We add the following
primarily for emphasis.
The Examiner addresses the issue of the meaning of the term "topology,"
finding that the Specification does not provide a special definition for the term.
Ans. 30. The Examiner also finds that the Specification discloses that a topology
may be of "business service application components and hardware infrastructure,"
(Spec. 3, 11. 7-11 ), and the topology model can include computing devices. (Spec.
4, 11. 4--5). Id. at 30-31.
If the specification, "reveal[ s] a special definition given to a claim term by
the patentee that differs from the meaning it would otherwise possess[,] ... the
inventor's lexicography governs." Phillips v. AWH Corp., 415 F.3d 1303, 1316
(Fed. Cir. 2005) (en bane). However, absent an explicit definition of a term in the
specification, pending claims are given their broadest reasonable construction
consistent with the specification during examination of a patent application. In re
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Application 12/815,194
Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Although we
review claim construction issues de novo, here we agree with the Examiner that the
Specification does not disclose a special definition for the term "topology," but
consistent with the Specification, topology can consist of business service
application components and hardware infrastructure, which may include
computing devices.
Turning to the issues relating to the findings of the teachings of the prior art,
the Examiner finds that based on Lubrecht' s teachings, a "resource capacity
management tier" focuses on the management of individual components of an IT
environment, and that "capacity" is based on the "services" provided by the IT
environment. Ans. 31 (citing Lubrecht i-f 23). The Examiner also finds that the
capacity of the component is based at least on topology. Id. (citing Lubrecht i-f 27).
As to the issue of the teaching of "rep lac[ ement] [of] any portion of a system
topology model with a reusable capacity planning scenario template based on the
identified capacities," the Examiner finds that Lubrecht teaches replacing portions
of the topology by using "simulations [to] investigate what-if scenarios (i.e.
templates) that determine "how changes in capacity affect the overall IT
environment (i.e. topology)." Id. at 32-33; see also Lubrecht i-f 28.
We do not find the Appellants' arguments for reversal of the obviousness
rejection to be persuasive because the Examiner's findings are sufficiently
supported by the record. Lubrecht teaches "managing resource capacity in an IT
environment" by "perform[ing] capacity management" with the use of a "model of
the IT environment" that "focuses on the management of individual components of
the IT environment," and may also employ "information derived from the model of
the IT environment at the service capacity management tier and/or the model at the
resource capacity management tier." Lubrecht i-f 23. As above, the "topology" of
the IT system can include "business service application components and hardware
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Application 12/815,194
infrastructure," as described in Lubrecht. Therefore, we do not discern any
reversible error in the Examiner's findings as to Lubrecht's teachings related to the
claim limitation "identifying the capacities of the components based on at least one
of topology and services executing on the components."
As to the "replacing" limitation, the Specification describes "templates" as
follows:
The capacity planning scenario template generated from
the PMDB ["performance management database"] may
comprise the view of the system or a proposed system in
the PMDB. For example, the template may comprise a
topology, fact measurements, constraints, etc. The
template may be based on actual or hypothetical
topologies, measurements, etc. The template may
comprise a planning scenario which can be evaluated by
a user in comparison with other templates. []. Templates
can range from a very narrow to a very broad scope. For
example, a template may describe a single hardware
device, or only a portion of a device. A template may
describe a single business service or a portion of a
business service. Alternately, a template may describe a
very large number of devices or business services.
Configuration items within the template, such as server
or network element, can be ready to be bound to other
aspects of performance scenarios. Thus, a template may
comprise a portion of a scenario to be bound with another
scenario or template. An overall planning scenario can
be created using one or more templates from the PMDB.
Spec. 8, 11. 1-15 (emphasis added).
Consistent with the Specification, a "capacity planning scenario template" of
claim 1 could be reasonably considered the equivalent of the "what-if scenarios" of
Lubrecht, as the Examiner finds. As the Examiner further finds, Lubrecht teaches
the use of simulations by "replacement" of portions of the model with the "what-if
scenarios" that can be based on capacities. See Lubrecht i-fi-123, 27, 28. As such,
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Application 12/815,194
we do not find reversible error in the Examiner's findings related to this claim
limitation.
We therefore sustain the Examiner's obviousness rejection of claim 1. The
remaining claims on appeal are not argued separately or further (see Appeal Br.
14) so they fall with claim 1.
SUMMARY
The rejection of claims 1-5, 7-11, and 13-16 under 35 U.S.C. § 112, first
paragraph is reversed.
The rejection of claims 1-5, 7-11, and 13-16 under 35 U.S.C. § 103(a) 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).
AFFIRMED
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