Ex Parte Sayers et al

Patent Trials and Appeals Board

Mar 26, 2019

13879443 - (D) (P.T.A.B. Mar. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/879,443 04/15/2013
146568 7590
ENTIT SOFTWARE LLC
500 Westover Drive
#12603
Sanford, NC 27330
03/28/2019
FIRST NAMED INVENTOR
Yaniv Sayers
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.
83217752 4901
EXAMINER
SWIFT, CHARLES M
ART UNIT PAPER NUMBER
2196
NOTIFICATION DATE DELIVERY MODE
03/28/2019 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):
software.ip.mail@microfocus.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YANIV SAYERS, EDITH RONEN, and AHI GVIRTSMAN
Appeal2018-004988 1
Application 13/879,443
Technology Center 2100
Before CARLA M. KRIVAK, ERIC S. FRAHM, and
MICHAEL J. STRAUSS, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
1 According to Appellants, EntIT, a wholly-owned affiliate of Micro Focus
International PLC, is the real party in interest (App. Br. 1 ).
Appeal2018-004988
Application 13/879,443
STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-13 and 15-19, which constitute all the claims pending in this
application. Claim 14 has been canceled. We have jurisdiction under 35
U.S.C. § 6(b ).
We affirm.
Appellants' Disclosed Invention
The disclosed invention is a system, method, and computer-readable
medium having instructions executable to perform a method for scheduling
changes to a computing environment, such as updating a version of a
computer program or upgrading a server (Title; Spec. ,r 1; Abstract).
Exemplary Claims
Exemplary claims 1 and 18 under appeal, with emphases added to
disputed portions of the claims, read as follows:
1. A method for scheduling changes, the method
compnsmg:
receiving, at a management system comprising a
processor, a request for a change in a first transactional data
service provided in a network;
determining, by the management system, a set of
additional transactional data services affected by the change in
the request, and [A] obtaining information about configuration
items for the determined set of additional transactional data
services affected by the change in the request;
determining, by the management system, a usage pattern
of the determined set of additional transactional data services
affected by the change in the request;
[B 1] determining, by the management system, a window
of time to implement the change in the first transactional data
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Application 13/879,443
service based on the obtained information about the
configuration items and the usage pattern of the determined set
of additional transactional data services that minimizes a
number of services in the determined set of additional
transactional data services that are affected by an
implementation of the change, [B2] wherein the window of
time to implement the change includes a period during which
the usage pattern includes fewer transactions than the usage
pattern during other windows of time; and
scheduling, by the management system, the
implementation of the change during the window of time in
which the usage pattern includes fewer transactions than the
usage pattern during the other windows of time.
18. The non-transitory computer readable medium of
claim 8, [CJ wherein the window of time meets a requirement
that the change does not interfere with other changes.
The Examiner's Rejection
The Examiner rejected claims 1-13 and 15-19 as being unpatentable
under 35 U.S.C. § I03(a) over the combination of Capek (US 2006/0190938
Al; published Aug. 24, 2006), Cozart (US 2011/0067028 Al; published
March 17, 2011), and Mohindra (US 2007/0294420 Al; published Dec. 20,
2007). Final Act. 2-18.
Appellants ' Contentions
Appellants primarily contend (App. Br. 6-11; Reply Br. 1-9) that the
Examiner erred in rejecting claims 1-13 and 15-18 under 35 U.S.C. § I03(a)
because, inter alia: 2
2 Appellants argue the patentability of (i) dependent claims 2-13 and 15-17
for the same reasons presented for independent claim 1 (App. Br. 6-9); and
(ii) dependent claim 19 for the same reasons presented for dependent claim
18 (App. Br. 10), and present separate arguments as to dependent claim 18
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Application 13/879,443
(!)Regarding claims 1-13 and 15-17:
a. The Examiner erred in finding that Capek and Cozart
disclose limitations B 1 and B2 (App. Br. 7; Reply Br. 2);
b. Capek fails to disclose limitation B 1 (App. Br. 7-8; Reply
Br. 3--4);
c. There is no teaching or hint that the system idle time of
Capek is determined in the manner described in limitation A
(App. Br. 8; Reply Br. 5); and
d. Paragraph 32 of Cozart fails to provide any teaching or hint
of the subject matter of limitations A and Bl (App. Br. 8-9;
Reply Br. 5); and
e. Mohindra fails to cure the deficiencies alleged as to Capek
and Cozart (App. Br. 9).
(2)Regarding remaining dependent claims 18 and 19:
a. Capek's paragraph 39 fails to meet the requirement of claim
18 that "the window of time meets a requirement that a
change [in a first transactional data service provided in the
network] does not interfere with other changes" as recited in
claim 18 (App. Br. 10; Reply Br. 8), because Capek allows
maintenance tasks to be performed during non-idle time, and
thus interfere with other maintenance tasks (Reply Br. 8);
and
(App. Br. 10). Therefore, we select (i) independent claim 1 as representative
of the group of claims 1-13 and 15-17; and (ii) dependent claim 18 as
representative of claims 18 and 19, and our decision will only address the
merits of claims 1 and 18.
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b. Cozart and Mohindra fail to cure the deficiencies alleged as to
Capek (App. Br. 10; Reply Br. 8).
Principal Issues on Appeal
Based on Appellants' arguments in the Appeal Brief (App. Br. 6-11)
and the Reply Brief (Reply Br. 1-9), the following principal issues are
presented on appeal:
(1) Did the Examiner err in rejecting claims 1-13 and 15-17 as being
unpatentable over the combination of Capek, Cozart, and
Mohindra because the combination fails to teach or suggest
disputed limitations A, B 1, and B2 of independent claim 1?
(2) Did the Examiner err in rejecting claims 18 and 19 as being
unpatentable over the combination of Capek, Cozart, and
Mohindra because the combination fails to teach or suggest
disputed limitation C of dependent claim 18?
ANALYSIS
We have reviewed the Examiner's rejections (Final Act. 2-18) in light
of Appellants' arguments in the briefs (App. Br. 6-11; Reply Br. 1-9) that
the Examiner has erred, as well as the Examiner's response to Appellants'
arguments (Ans. 3-7). We disagree with Appellants' contentions. With
regard to representative claims 1 and 18, we adopt as our own (1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken (Final Act. 2-6 as to claim 1; Final Act. 18 as to claim 18),
and (2) the reasons set forth by the Examiner in the Examiner's Answer
(Ans. 3---6 as to claim 1; Ans. 7 as to claim 18) in response to Appellants'
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Appeal Brief. We concur with the findings made by the Examiner, and we
provide the following for emphasis.
Claims 1-13 and 15-17
We agree with the Examiner (Final Act. 5---6) that Mohindra (i1i1 42,
44, 45) teaches configuration change requests, and obtaining information
about configuration items (limitation A). Similarly, we agree with the
Examiner that Cozart (i1i129, 32) teaches transaction data services (Final
Act. 4), and Capek (i1i136-39, 41) teaches a predictive idle time algorithm to
determine the time to perform maintenance functions (Final Act. 3--4).
As a result, we agree with the Examiner (Final Act. 2---6; Ans. 3-6)
that the combination of Capek, Cozart, and Mohindra teaches or suggests
limitations A, Bl, and B2.
We note that each reference cited by the Examiner must be read, not
in isolation, but for what it fairly teaches in combination with the prior art as
a whole. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(finding one cannot show non-obviousness by attacking references
individually where the rejections are based on combinations of references).
In this light, Appellants' arguments as to representative independent
claim 1 (App. Br. 7-9) concerning the individual shortcomings in the
teachings of Capek and Cozart are not persuasive, and are not convincing of
the non-obviousness of the claimed invention set forth in representative
independent claim 1. The Examiner relies on a properly made combination
of Capek, Cozart, and Mohindra to support the conclusion of obviousness of
the subject matter of representative independent claim 1. For example,
Appellants contend (App. Br. 8-9; Reply Br. 5) neither Capek nor Cozart
disclose limitation A, when the Examiner has relied on Mohindra as
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teaching the subject matter of limitation A. Appellants also contend (App.
Br. 7-8; Reply Br. 3--4) Capek fails to disclose limitation Bl, including
"'determining ... a window of time ... that minimizes a number of services
in the determined set of additional transactional data services that are
affected by an implantation of the change ... '" (App. Br. 8; Reply Br. 3),
when the Examiner has relied on Cozart, and not Capek, as teaching
transactional data services.
In view of the foregoing, Appellants have not rebutted or otherwise
shown error in the Examiner's explanation of the combination of the
collective teachings and suggestions of the applied references with respect to
the subject matter of claim 1 (see Final Act. 2---6; Ans. 4--6) made in
response to the Appellants' arguments in the Appeal Brief (regarding the
references individually).
Therefore, we sustain the obviousness rejection of representative
independent claim 1, as well as claims 2-13 and 15-17 grouped therewith.
Claims 18 and 19
With regard to dependent claim 18, Appellants' contentions that
Capek's paragraph 3 9 fails to meet the requirement of limitation C 3 of claim
18 that "the window of time meets a requirement that a change does not
interfere with other changes" (App. Br. 1 O; Reply Br. 8), because Capek
allows maintenance tasks to be performed during non-idle time, and thus
interfere with other maintenance tasks (Reply Br. 8), are not persuasive.
3 Notably, the feature of limitation C of claim 18, that the change
implemented "does not interfere with other changes," is a negative limitation
added by Appellants' amendment filed June 12, 2017 (the last amendment
before the Final Rejection), and has written description support in paragraph
3 5 of the Specification.
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Although paragraph 39 discloses performing maintenance during non-idle
time when "a big enough idle time cannot be found," paragraph 39 also
discloses ( and step 508 in Figure 5 shows) performing maintenance tasks
during idle time based on a best time duration match (from block 504) with
system predicted idle time as shown in Figure 3. In other words, Capek
discloses both (i) an embodiment occurring only during idle time, thus
meeting limitation C recited in claim 18; and (ii) an embodiment occurring
during non-idle time as argued by Appellants. Therefore, we agree with the
Examiner that Capek teaches or suggests limitation C recited in claim 18.
Because we find Capek's Figure 5 (step 508) and paragraph 39 teach or
suggest limitation C of claim 18, Appellants have not shown the Examiner's
obviousness rejection of claim 18 is in error.
Therefore, we also sustain the obviousness rejection of representative
dependent claim 18, as well as claim 19 grouped therewith.
CONCLUSION
The Examiner did not err in rejecting claims 1-13 and 15-17 as being
unpatentable under 35 U.S.C. § 103(a) over the combination of Capek,
Cozart, and Mohindra.
DECISION
The Examiner's rejection of claims 1-13 and 15-17 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 )(iv).
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AFFIRMED
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