Ex Parte Rose

Patent Trial and Appeal Board

Jul 12, 2016

12115943 (P.T.A.B. Jul. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/115,943 05/06/2008 JOHNF. ROSE
56436 7590 07114/2016
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.
82257602 6062
EXAMINER
RINES, ROBERT D
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
07/14/2016 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 JOHN F. ROSE
Appeal2014-003904 1
Application 12/115,943 2
Technology Center 3600
Before ANTON W. PETTING, CYNTHIA L. MURPHY, and
MATTHEWS. MEYERS, Administrative Patent Judges.
MEYERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner's
final rejection of claims 1-10, 13-17, and 20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellant's Appeal Brief ("Appeal Br.," filed
August 7, 2013) and Reply Brief ("Reply Br.," filed February 10, 2014), and
the Examiner's Answer ("Ans.," mailed December 19, 2013) and Final
Office Action ("Final Act.," mailed April 11, 2013).
2 Appellant identifies Hewlett-Packard Development Company, LP as the
real party in interest (Appeal Br. 2).
Appeal2014-003904
Application 12/115,943
CLAHvIED Il-.JVENTION
Appellant's claimed invention relates generally to a method and
apparatus which "collect[ s] metrics of data-center operations, such as during
its operation in a production environment, to analyze the metrics, once
collected, and to facilitate management of the data-center responsive to
analysis of the metrics" (Spec. i-f 1 ).
Claims 1, 15, and 2 0 are the independent claims on appeal. 3 Claim 1,
reproduced below with added bracketed notations, is illustrative of the
subject matter on appeal.
1. An apparatus for facilitating operation of a data center,
said apparatus comprising:
[a] a metric obtainer, implemented with a computer
system, configured automatically to obtain data-center metrics
associated with operations of the data center;
[b] an analyzer, implemented with said computer system,
configured to analyze the data-center metrics obtained by said
metric obtainer, predict a datacenter green footprint, and perform
comparative cost modeling; and
[ c] a manager, implemented with said computer system,
configured to manage responses of said data center, wherein said
responses are based on data provided by said analyzer, and
optimize a performance criteria to enhance a green footprint of a
selected application executing at said data center.
REJECTIONS
Claims 1-10 and 13-17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Conway (US 2009/0248854 Al, pub. Oct. 1, 2009),
Belady (US 2006/0184287 Al, pub. Aug. 17, 2006), and Official Notice.
3 We note that independent claim 15 includes a typographical error which
does not alter the disposition of this appeal.
2
Appeal2014-003904
Application 12/115,943
Claim 20 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Conway, Belady, Official Notice, and McConnell (US 2008/0255899 Al,
pub. Oct. 16, 2008).
ANALYSIS
Independent claims 1 and 15, and dependent claims 2-10, 13, 14, 16, and 17
We are not persuaded by Appellant's argument that the Examiner
erred in rejecting independent claims 1 and 15 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Conway, Belady, and Official Notice
(see Appeal Br. 6-14; see also Reply Br. 1-2). Instead, we agree with, and
adopt the Examiner's findings and rationales, as set forth at pages 3---6 of the
Final Office Action and pages 4--7 of the Answer (see Final Act. 3--4 (citing
Conway i-fi-f 14, 15, 20, 23, 33); see also Ans. 4--9 (citing Conway i-fi-120, 23,
27; Spec. i-f 19)). We add the following discussion for emphasis.
Conway is directed to a "system for energy efficient routing and
network services" (Conway i1 8) in order to "[ r ]educ[ e] emissions and the
impact of human activities on the environment" (id. i-f l ). More particularly,
Conway discloses that its "system may determine the power usage and/or
carbon footprint of one or more networking components or network services
utilizing measurements and/or estimates" (id. i1 8). Conway also discloses
that its "system may receive carbon footprint information from a power
supplier or input by a user and may utilize the carbon footprint information
to determine the carbon footprint of one or more network components or
services" (id.; see also id. i-fi-f 14--15). Conway further discloses
[p ]ower consumption metrics and/or carbon footprint
metrics may be calculated for a process or service provided at a
network element, such as a processmg step at a server or
3
Appeal2014-003904
Application 12/115,943
transm1ttmg a packet from a router. . . . Power consumption
metrics and/or carbon footprint metrics may be calculated by
summing metrics of the service from one or more network
elements. For example, the power consumption metrics and/or
carbon footprint metrics of a packet sent from network client 102
to network.
(Id. i-f 20). Conway still further discloses
[ o ]ne or more components of a network may utilize carbon
footprint metrics to reduce or minimize the carbon footprint of
one or more network services or processes. One or more network
elements may enable carbon footprint routing, which may utilize
carbon footprint metrics, power usage metrics, or other metrics
to route packets along network paths which will result in a lower
carbon footprint from the packet transmission and/ or handling.
(Id. i-f 23).
Appellant argues that "Conway teaches away from 'a green footprint
of a selected application executing at said data center,"' as recited by
limitation [ c] of independent claim 1, and similarly recited by independent
claim 15, because Conway "determin[ es] a foot print of a request for a
network service to involve portions of multiple applications' footprints"
(Appeal Br. 9). More particularly, Appellant argues "Conway's intended
purpose pertains to a request for a network service that requires routing
packets along network paths," and as such, "require[ s] routing packets along
network paths that would involve more than one application, more than one
data center and some of the applications would be outside of any data
center" (Appeal Br. 9; see also Reply Br. 1-2).
However, Appellant's teaching away argument is not persuasive at
least because Appellant does not point to any passage in Conway that
"criticize[s], discredit[s] or otherwise discourage[s]" Conway's disclosure
regarding analyzing the power consumption of computer resources and
4
Appeal2014-003904
Application 12/115,943
network elements running applications associated with functions performed
by the data center (see Ans. 5---6) from addressing the argued limitation. See
In re Fulton, 391F.3d1195, 1201 (Fed. Cir. 2004) (prior art does not teach
away from claimed subject matter merely by disclosing a different solution
to a similar problem unless the prior art also criticizes, discredits or
otherwise discourages the solution claimed). And, as the Examiner points
out (see Ans. 4--7), "Conway refers to the partitioned analysis of components
operating in the data center as network elements and is clear that the
'network elements' are running applications associated with functions
performed by the data center" (Ans. 6). In this regard, we note that Conway
discloses that "[a] network operation may include a single step performed as
part of the function of a network element such as a single step performed in
the process of routing a packet or instantiating a network service" (Conway
i-f 8). Thus, Appellant's argument is not persuasive.
We also are not persuaded of error on the part of the Examiner by
Appellant's argument that the combination of Conway and Belady fails to
disclose or suggest "obtain[ing] data-center metrics associated with
operations of the data center," as recited by limitation [a] of independent
claim 1, and similarly recited by independent claim 15, and "analyz[ing] the
data-center metrics," as recited by limitation [b] of independent claim 1, and
similarly recited by independent claim 15, because neither Conway nor
Belady "describe[s] 'application performance' as a metric" (Appeal Br. 11-
13). However, independent claims 1 and 15 do not recite obtaining and
analyzing "application performance" as a metric; but rather, exemplary
independent claim 1 recites "obtain[ing] data-center metrics associated with
operations of the data center" and "analyz[ing] the data-center metrics." See
5
Appeal2014-003904
Application 12/115,943
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