Ex Parte Shabtay et al

Board of Patent Appeals and Interferences

Sep 8, 2010

09793455 (B.P.A.I. Sep. 8, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte LIOR SHABTAY, DAN BEISER, OFIR FRIEDMAN,
EYAL AMITAI, and GUY KRONENTAL
__________

Appeal 2009-004586
Application 09/793,455
Technology Center 2400
__________

Before JOSEPH L. DIXON, JAY P. LUCAS, and STEPHEN C. SIU,
Administrative Patent Judges.

SIU, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 1-4, 6-20, 22, and 23. Claims 5, 21, and 24-
36 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We Affirm.

The Invention
The disclosed invention relates generally to a load balancer that
manages message connections with servers (Spec. 2).
Independent claim 1 is illustrative:
1. A method of connecting a client to a server by a load
balancer associated with a plurality of servers, comprising:
establishing a first connection for transmission of packets
between the load balancer and the client;
selecting a server to service the client; and
splicing the first connection with a second connection between
the load balancer and the selected server, the second connection being
established before the first connection;
wherein the load balancer monitors numbers of available
connections between the load balancer and respective ones of the
servers, the available connections being connections which are not
spliced with connections to clients, and if the number of available
connections for a given one of the servers falls outside of a
predetermined range established by the load balancer for said given
server, the load balancer opens one or more new connections with the
given server or closes one or more existing connections with the given
server so as to maintain the number of available connections for said
server within the predetermined range;
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wherein different predetermined ranges are selected by the load
balancer for respective ones of the serves based on respective rates
associated with said servers.

The References
The Examiner relies upon the following references as evidence in
support of the rejections:
Colby US 6,006,264 Dec. 21, 1999
Batra US 6,105,067 Aug. 15, 2000
Amicangioli US 6,327,242 B1 Dec. 04, 2001
(filed Mar. 17, 1998)
Primak US 2002/0010783 A1 Jan. 24, 2002
(filed Dec. 01, 2000)
Susai US 6,411,986 B1 June 25, 2002
(filed Nov. 10, 1998)

The Rejections
1. The Examiner rejects claims 1-4, 6, 8-17, 19, 20, and 23 under 35
U.S.C. § 103(a) as being unpatentable over Susai, Batra, and Primak.
2. The Examiner rejects claim 7 under 35 U.S.C. § 103(a) as being
unpatentable over Susai, Batra, Primak, and an Official Notice (now
admitted prior art).
3. The Examiner rejects claim 18 under 35 U.S.C. § 103(a) as being
unpatentable over Susai, Batra, Primak, and Colby.
4. The Examiner rejects claim 22 under 35 U.S.C. § 103(a) as being
unpatentable over Susai, Batra, Primak, and Amicangioli.
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ISSUE 1
Appellants assert that Primak fails to disclose or suggest “available
connections between a load balancer and a server within a predetermined
range” (App. Br. 6) because the “connection values in Primak are not
available connections between a load balancer and a server” (id.).
Did the Examiner err in finding that the combination of Susai, Batra,
and Primak discloses or suggests a number of available connections for a
server within a predetermined range?

ISSUE 2
Appellants assert that “there is no objective evidence of motivation for
the proposed combination” (App. Br. 7) and that Primak “would tend to
teach away from the proposed combination” (id. at 8).
Did the Examiner err in finding that it would have been obvious to
one of ordinary skill in the art to have combined the Susai and Batra
references with the Primak reference?

ISSUE 3
Appellants assert that “the proposed combination of Susai, Batra and
Primak fails to meet the limitations of dependent claim 3” (App. Br. 9).
Did the Examiner err in finding that the combination of Susai, Batra,
and Primak discloses or suggests the limitations of claim 3?
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ISSUE 4
Appellants assert that “Amicangioli . . . fails to meet the limitations
[of claim 22]” (App. Br. 10).
Did the Examiner err in finding that the combination of Susai, Batra,
Primak, and Amicangioli discloses or suggests limitations recited in claim
22?

FINDINGS OF FACT
The following Findings of Facts (FF) are shown by a preponderance
of the evidence.
1. Primak discloses “balancing connection load among servers in . . .
[a] server cluster” (Abstract).
2. Primak discloses that “each server 10 includes . . . a load balancing
module 12” (¶ [0030]), that “each load balancing module 12
evaluates a client request by assigning the client request a connection
value” (id.), and that “[e]ach server is assigned a range of connection
values as a function of its available capacity” (¶ [0032]).
3. Primak discloses that “a server having a greater capacity to accept
new requests for connection is assigned a greater number or range of
connection values” (¶ [0032]) and that “each server’s assigned range
of the connection values is continuously updated as a function of its
available capacity or connection availability” (id.).
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4. Batra discloses that “[t]he subpool name or connection type is used
to tell the connection manager which data server the servlet wants a
connection with” (col. 9, ll. 25-27) in which a “subpool name . . .
identifies that data server, and the servlet requests a connection from
that subpool to get a connection to that data server” (col. 9, ll. 33-35).
5. Batra discloses “a maximum number of data connections to the data
server 90 can be specified” (col. 8, ll. 47-49).
6. Amicangioli discloses “limiting the number of connections . . . the
server 20 is expected to handle” (col. 6, ll. 53-55).

PRINCIPLES OF LAW
Obviousness
The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, and
(3) the level of skill in the art. Graham v. John Deere Co., 383 U.S. 1, 17
(1966).
“[The] combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007) (citation omitted).

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ANALYSIS
Issue 1
Based on Appellants’ arguments in the Appeal Brief, we will decide
the appeal with respect to issue 1 on the basis of claim 1 alone. See 37
C.F.R. § 41.37(c)(1)(vii).
As described above, Primak discloses a load balancer that assigns a
“range of connection values” to a server, the connection value being
proportional to the available capacity of the server to accept new requests for
connection (FF 2-3). Hence, Primak discloses a predetermined range of a
number of connections for a server. Also, Primak discloses that the range of
connection values for a server is “continuously updated as a function of its
available capacity” (FF 3), which we agree with the Examiner to be
equivalent or at least suggestive of modifying the number of connections as
recited in claim 1.
Appellants argue that Primak’s connection values “are used simply to
determine which servers will accept which incoming requests” (App. Br. 6)
but “have nothing whatsoever to do with available connections” (id. at 7).
However, the Examiner relies on the Batra reference (rather than Primak) as
disclosing a server “monitoring numbers of available connections” (Ans. 5)
and opening “one or more new connections . . . or clos[ing one] or more
existing connections . . . so as to maintain the number of available
connections” (id.), which Appellants do not dispute. One cannot show
nonobviousness by attacking references individually where the rejections are
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based on combinations of references. In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986).
The Examiner relies on Primak as disclosing ranges of connections
based on rates of servers (Ans. 6). As noted above, Primak discloses servers
with a greater capacity having a commensurate “connection value” with a
greater capacity to accept connection requests. In view of the lack of an
explicit definition of the term “rate” in the Specification, we agree with the
Examiner that an increase or decrease of a “rate” of a server, construed
broadly but reasonably and in light of the Specification, includes a
corresponding increase or decrease of capacity to accept connection requests
since the rate of connections in a server (i.e., speed or likelihood of
connection) would be higher or lower in a server if the capacity of the server
were higher or lower, respectively. Therefore, we agree with the Examiner.
For at least the aforementioned reasons, we find no error in the
Examiner’s rejection of claim 1, and claims 2-4, 6-20, 22, and 23, which fall
therewith, with respect to issue 1.

Issue 2
Based on Appellants’ arguments in the Appeal Brief, we will decide
the appeal with respect to issue 2 on the basis of claim 1 alone. See 37
C.F.R. § 41.37(c)(1)(vii).
Susai discloses a system or network of servers that “opens and
maintains connections with the servers and handles the opening and closing
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of connections with clients accessing the servers” (Abstract) involving
“seamlessly splic[ing] the client and server connections” (col. 5, ll. 28-30).
As described above, Primak also discloses a network of servers in which a
load balancing module provides connections between the servers and clients
based on a connection value that is a function of each server’s available
capacity (FF 1-3). Both Susai and Primak disclose known methods and
systems of managing connections between clients and servers in a network.
Modifying the system of Susai that splices client and server connections and
manages opening and closing of client-server connections with the system of
Primak that also manages client and server connections would have merely
entailed re-arranging these known elements to achieve a predictable result of
management of splicing client and server connections in creating client-
server connections based on, for example, “connection values” or server
capacity. Therefore, we agree with the Examiner that the combination of
Primak and Susai would have been obvious to one of ordinary skill in the
art. “[W]hen a patent ‘simply arranges old elements with each performing
the same function it had been known to perform’ and yields no more than
one would expect from such an arrangement, the combination is obvious.”
KSR Int’l Co., 550 U.S. at 417 (citing Sakraida v. AG Pro, Inc., 425 U.S.
273, 282 (1976)).
Appellants argue that the Primak system “appears to be incompatible
with at least the Susai system, which would tend to teach away from the
proposed combination” (App. Br. 8) because Susai discloses, according to
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Appellants, “a centralized load balancer [that] determines which requests
will go to which servers” (id.). As noted above, Primak also discloses a load
balancer that determines client-server connections but utilizes connections
values for servers to make the determination (FF 1-3). Hence, in both the
system of Susai and Primak, a load balancer determines client connections to
particular servers. While Appellants assert that the two systems (of Susai
and Primak) would be “incompatible,” Appellants have not demonstrated
how one system in which a load balancer determines client connections with
a server (Susai) would be “incompatible” with a system in which a load
balancer determines client connections with a server based on a connection
value. Nor do we discern any “incompatibility.”
Appellants also argue that Primak “would tend to teach away from the
proposed combination” with the Susai reference (App. Br. 8). “A reference
may be said to teach away when a person of ordinary skill, upon
[examining] the reference, would be discouraged from following the path set
out in the reference, or would be led in a direction divergent from the path
that was taken by the applicant.” Para-Ordnance Mfg., Inc. v. SGS
Importers Int’l, Inc. 73 F.3d 1085, 1090 (Fed. Cir. 1995) (quoting In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)). In the present case, we do not
find, and Appellants have not demonstrated, that one of ordinary skill in the
art, upon examining the Susai reference, would be discouraged from
“following the path set out” by Susai in view of Privak (or vice versa). In
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the absence of such a showing by Appellants, we disagree with Appellants
that Primak teaches away from the combination with Susai.
For at least the aforementioned reasons, we find no error in the
Examiner’s rejection of claim 1, and claims 2-4, 6-20, 22, and 23, which fall
therewith, with respect to issue 2.

Issue 3
Based on Appellants’ arguments in the Appeal Brief, we will decide
the appeal with respect to issue 3 on the basis of claim 3 alone. See 37
C.F.R. § 41.37(c)(1)(vii).
Appellants argue that Batra fails to disclose or suggest “a server is
selected responsive to a number of available connections between the load
balancer and one or more of the servers with which the load balancer is
associated” (Reply Br. 5). While Batra discloses selection of a server (FF 4
– a connection manager identifies or “selects” a server based on a subpool
name), the Examiner finds that Primak, as set forth above, discloses a
number of available connections as related to a “connection value” that is
proportional to server capacity and a system in which client-server
connections are established based on the connection value (and, hence, the
server capacity and number of available connections) (FF 1-3). Since the
Examiner’s rejection of claim 3 is based on the combination of Batra and
Primak (and Susai) rather than on Batra alone and Appellants have not
demonstrated that Primak fails to disclose or suggest a number of available
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connections as we have described above, we find unpersuasive Appellants’
argument that the combination of Susai, Batra, and Primak supposedly fails
to disclose or suggest the disputed features.
For at least the aforementioned reasons, we find no error in the
Examiner’s rejection of claim 3, and claim 4, which falls therewith, with
respect to issue 3.

Issue 4
As set forth above, Batra discloses a maximum number of data
connections to a server (FF 5) and Amicangioli discloses limiting the
number of connections to less than what a server is expected to handle (e.g.,
less than the maximum number of data connections of Batra) (FF 6). We
find no distinction between the combination of Batra and Amicangioli of a
predetermined maximum number of data connections and a number of
connections being below the predetermined maximum number and the
claimed feature of a total number of connections handled by a server below a
predetermined maximal number of connections.
Appellants argue that Batra fails to disclose or suggest “a technique
wherein the number of available connections is not equal to a predetermined
maximal number” (Reply Br. 7). However, Amicangioli discloses a number
of connections less than a predetermined number (FF 6). Appellants also
argue that Amicangioli “fails to make any mention that the number of
available connections is equal to a predetermined number except during
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short transient periods” (Reply Br. 7). However, Batra discloses establishing
a maximum number of data connections to a server (i.e., a predetermined
number) and Amicangioli discloses a condition (or a period of time) during
which the number of connections to a server is limited to less than a
maximum number (FF 6-7). We therefore disagree with Appellants’
argument that the combination of at least Batra and Amicangioli fails to
disclose or suggest these disputed features.
For at least the aforementioned reasons, we find no error in the
Examiner’s rejection of claim 22 with respect to issue 4.

CONCLUSION OF LAW
Based on the findings of facts and analysis above, we conclude that
the Examiner did not err in:
1. finding that the combination of Susai, Batra, and Primak
discloses or suggests a number of available connections for a server within a
predetermined range (issue 1),
2. finding that it would have been obvious to one of ordinary skill
in the art to have combined the Susai and Batra references with the Primak
reference (issue 2),
3. finding that the combination of Susai, Batra, and Primak
discloses or suggests the limitations of claim 3 (issue 3), and
4. finding that the combination of Susai, Batra, Primak, and
Amicangioli discloses or suggests limitations recited in claim 22 (issue 4).
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DECISION
We affirm the Examiner’s decision rejecting claims 1-4, 6-20, 22, and
23 under 35 U.S.C. § 103(a).
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)(iv).

AFFIRMED

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