Ex Parte Smith

Patent Trial and Appeal Board

Feb 26, 2014

11100170 (P.T.A.B. Feb. 26, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/100,170 04/06/2005 Rick A. Smith 3008
7590 02/27/2014
Rick B. Yeager
10805 Mellow Lane
Austin, TX 78759
EXAMINER
LE, MICHAEL
ART UNIT PAPER NUMBER
2163
MAIL DATE DELIVERY MODE
02/27/2014 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICK A. SMITH
___________

Appeal 2011-009385
Application 11/100,170
Technology Center 2100
____________

Before JOSEPH F. RUGGIERO, CARL W. WHITEHEAD, JR., and
DANIEL N. FISHMAN, Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-009385
Application 11/100,170

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STATEMENT OF THE CASE
Appellant is appealing the final rejection of claims 1-4 and 8-21.
Claims 5-7 and 22-25 are withdrawn. Appeal Brief 1. We have jurisdiction
under 35 U.S.C. § 6(b) (2012).
We affirm.

Introduction
According to Appellant, the invention is directed to:
[A] software tool and system that was designed for, and
intended to be used by, database administrators (DBAs), who
are responsible for maintaining objects in a database
environment. The tool consists of both online and batch
processes. In one embodiment, the online process comprises a
series of visual panels that allow the DBA to define various
objects. These visual panels may be presented via either a
graphical user interface or a more traditional mainframe user
interface. These objects include characteristics of the database
objects themselves, as well as definitions of objects required by
the tool. The batch processes use the information defined in the
online process to dynamically build executable procedures.
These procedures and control cards are the resulting artifacts
from the dynamically generated grid of database maintenance
tasks. These procedures are then executed in a controlled
environment, to satisfy the maintenance policies of an
organization. The current invention provides a consistent
framework that enforces these policies.

Specification, p. 6, l. 12 – p. 7. l. 2.

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Illustrative Claim (Emphasis Added)
1. A method for balancing and scheduling database maintenance
tasks for a plurality of database objects in a database, such that the tasks are
assigned across a plurality of jobs within a task schedule, the method
comprising

defining characteristics for each of the plurality of database objects,
the characteristics including at least one indicator of whether to force the
object into a particular maintenance job;

establishing jobs and a maintenance task grid for the schedule, such
that the maintenance task grid stores information about the objects that are
assigned to jobs within the schedule;

assigning each database object of the plurality of database objects to a
job by forcing the object to a particular job, if the indicator designates the
particular job, using a core balancing technique to assign the object to a job,
if the indicator does not designate a particular job, and

updating the grid to reflect the assignment of the object to a job; and

scheduling and executing the tasks related to the objects assigned to
each job.

Rejections on Appeal
Claims 1-4, 8, 9, and 17 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Vos (U.S. Patent Application Publication Number
2002/0087587 A1; published July 4, 2002). Answer 3-9.
Claims 10, 18, and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Vos and Appellant’s Admitted prior art (AAPA)
Figure 37. Answer 9-10.
Claims 11-16, 19, and 21 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Vos, Lafforet (U.S. Patent Application Publication
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Number 2005/0165713 A1; published July 28, 2005) and Appellant’s
Admitted prior art (AAPA) Figure 39. Answer 10-13.

Issue
Does Vos disclose a method for database maintenance utilizing a
maintenance task grid and a core balancing technique as recited in
independent claims 1 and 17?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We disagree with Appellant’s
contentions. We concur with the findings and reasons set forth by the
Examiner in the action from which this appeal is taken and the reasons set
forth by the Examiner in the Answer in response to Appellant’s Appeal
Brief. However, we highlight and address specific findings and arguments
for emphasis as follows.
Appellant argues that Vos teaches a different approach than the
claimed invention does because “Vos’ (p0078, p0091) method describes
identifying objects that have issues, recording this information in a workload
table, and passing the tasks off to a commercially available job scheduler.”
Appeal Brief 17. Appellant asserts that Vos’ approach is well known and
that “[m]entioning a table called a ‘workload table’ and actually describing
how that workload is constructed and managed are two different things.” Id.
Appellant further argues:
Smith’s (the current invention) core balancing technique
populates a maintenance task grid, and by doing so, dictates a
balanced workload and a one-time setup of the job schedule.
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From an operational perspective, the methods are completely
different.

Vos never describes how the workload is managed, other
than saying tasks are passed to an operating system job
scheduler (Control-M).

Id. at 18.

Appellant concludes Vos’ “workload table mentioned briefly is not a
maintenance task grid” and the claimed invention’s “maintenance task grid
is where the power of the core balancing technique is performed, and is the
essence of [Appellant’s] patent application.” Id. at 18-19.
The Examiner finds:
In regards to limitation (1), Appellant seems to argue
specifics of a maintenance task grid that are not recited in the
claim. In particular, Appellant argues the differences between a
maintenance task grid and the workload table of Vos, Noting
differences that are not recited as limitations of the claim. In
reference to claim 1, a maintenance task grid “stores
information about objects that are assigned to jobs within the
schedule.” Vos discloses a workload table (i.e., maintenance
task grid) which is used to manage maintenance jobs. Vos at
para[.] 0076; para. 0078; para. 0091. Thus, Vos discloses the
“maintenance task grid” of claim 1.

Answer 14.
We agree with the Examiner’s findings and find Appellant’s
arguments are not commensurate with the scope of the claims. Appellant’s
Specification [page 43] discloses that the claimed maintenance task grid is
constructed via a balancing technique based upon one or more dimensions;
however, we find the construction of the grid does not distinguish the
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claimed method over Vos for the same reasons articulated by the Examiner
as discussed above.
Application claims are interpreted as broadly as is reasonable and
consistent with the specification, In re Thrift, 298 F.3d 1357, 1364 (Fed. Cir.
2002), while “taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written description
contained in the applicant's specification,” In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997), and without reading limitations from examples given
in the specification into the claims, In re Zletz, 893 F.2d 319, 321-22 (Fed.
Cir. 1989).

Appellant further argues:
Vos’ approach of taking actions to prevent associated
problems from occurring (footnote#3) has nothing to do with
using a core balancing technique.

Updating the grid to reflect the assignment of the object
to a job, is the last task for each object, during the iterative
process of building the maintenance task grid, using the core
balancing technique defined by, and unique to, Smith. Vos’
mention of “utility options are tuned, duplicate tasks are
identified, grouping and parallelism options are analyzed, and
dependencies within the unit of work are noted” is a high level
description of what every database administrator does on a
periodic basis. It is not a solution; it is a process description.
Smith’s core balancing technique is a new solution to a real
problem.

Appeal Brief 19.
The Examiner finds:
Appellant seems to argue limitations that are not recited in the
claim. Claim 1 simply recites “using a core balancing
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technique” and does not require any specific steps or
approaches to accomplish the technique. Given its broadest
reasonable interpretation, a core balancing technique is
interpreted to performing an analysis to prevent problems from
occurring. Vos discloses performing additional actions to
prevent associated problems from occurring. In other words,
Vos discloses balancing. Vos at para. 0078. Thus, Vos discloses
the “core balancing technique” of claim 1.

Answer 14.
We agree with the Examiner’s findings and find Appellant’s
arguments are not commensurate with the scope of the claims.
Appellant’s Specification [page 27] discloses that the claimed core
balancing technique employs an indistinctive “dynamic balancing
method,” subsequently, the claimed core balancing technique is overly
broad and not well defined and thus subject to the Examiner’s
reasonable broad interpretation. Therefore, we find the claimed core
balancing technique fails to distinguish the claimed invention over the
teachings of Vos for the same reasons articulated by the Examiner
discussed above.
Appellant also argues:
Any patent in this space (database administration)
schedules and executes tasks. Vos uses several components of
the “Object Advisor” to accomplish this and runs in real time.
Smith’s approach is driven by the core balancing technique and
uses a one-time setup with the scheduler. After that, the tasks
can run unattended, unless the schedule needs to be modified.
Smith's approach also allows for the DBA to see what tasks are
scheduled prior to actual execution, days in advance if
necessary. Even though both approaches schedule and execute
tasks, it is accomplished in two very different ways.

Appeal Brief 20.
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The Examiner contends Appellant’s arguments pertaining to “a
real time scheduling approach” (Id. at 19) are not commensurate with
the scope of claim 1. Answer 14. We agree with the Examiner’s
contentions for reasons stated above in reference to the claimed core
balancing technique.
Therefore, for reasons stated above, we sustain the Examiner’s
anticipation rejection of claim 1.
Appellant argues in regard to claim 17, that Vos fails to teach a
“statistics maintenance task grid;” Vos describes actions that do not
describe “HOW that object is applied to the maintenance task grid;”
“Vos does not teach a ‘core balancing technique;’” and Vos does not
teach “executing the statistics tasks for each job and storing threshold
violations.” Appeal Brief 31-35.
We do not find Appellant’s arguments in regard to “statistics
maintenance task grid” and the “core balancing technique” to be
persuasive for the reasons discussed above.
Appellant contends in regard to the “executing the statistics
tasks for each job and storing threshold violations” limitation in claim
17 that:
Vos (p0121) discloses a reason to reorganize a database
object (i.e. contention on a device). However, device contention
is not a threshold violation as defined by industry standards. In
the past, device contention was an issue. Current day disk
subsystems, where database objects live, are striped across
hundreds of actual disk drives. Hence, Vos’ reason to
reorganize is no longer valid.
Id. at 34.
The Examiner finds Vos discloses “executing the statistics tasks
for each job and storing threshold violations (Vos at para. 0052; para.
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0057; para. 0074; para. 0085; para. 0091; para. 0093).” Answer 8.
We agree with the Examiner’s findings.
We do not find Appellant’s argument to be persuasive because
Appellant presented no evidence to support his allegation that Vos’ “device
contention is not a threshold violation as defined by industry standards.”
Appeal Brief 34. Attorney “argument . . . cannot take the place of
evidence.” In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). See, e.g.,
In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (attorney arguments or
conclusory statements are insufficient to rebut a prima facie case).
Therefore, we sustain the Examiner’s anticipation rejection of claim
17 for the same reasons articulated by the Examiner discussed above.
Appellant argues dependent claims 2-4, 8, and 9 separately. Appeal
Brief 20-28. However, the arguments for the dependent claims are merely
variations of Appellant’s arguments made for independent claims 1 and 17.
For example, in regard to claim 8, Appellant argues, “Smith [claimed
invention] provides a user interface (UI), as does Vos.” Id. at 27. Appellant
contends, “[b]ecause the goal of each is different, the user interfaces would
be different.” Id. The Examiner finds, “[t]he claim simply requires an
online interface to assign characteristics to database objects. Vos discloses
that the system functions over a network and a user interface. It is
interpreted that the user interface is an online interface. Vos at para. 0045;
para. 0097.” Answer 17. We agree with the Examiner’s findings and
sustain the Examiner’s anticipation rejection of claim 8 for the reasons
articulated by the Examiner discussed above. We also adopt the Examiner’s
findings in regard to dependent claims 2-4 and 9 (Answer 15-18) and sustain
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the Examiner’s anticipation rejection of dependent claims 2-4 and 9 for
reasons articulated by the Examiner discussed above.
Appellant argues that dependent claims 10-16 and 18-21, rejected
under various 35 U.S.C. § 103(a) rejections, are patentably distinguishable
over the cited prior art references. Appeal Brief 36-54. Appellant restates
the Examiner’s rejections of each of the claims and addresses each one
accordingly. Id. However, Appellant’s arguments are variations of the
arguments Appellant made in regard to independent claims 1 and 17. Id.
For example, Appellant argues that the combination of the cited
references “do not teach or suggest the cell representation of claim 19”
because:
Vos (p0109) discloses the management of statistics in
repository tables. Since statistics are already in the repository
tables, they have already been generated. This is a completely
different concept than the one discussed in Claim 19. The core
balancing technique as it is applied to statistics generation is the
focus of Claim 19. In other words, statistics have not been taken
yet. Only the jobs to take statistics have been generated. Vos
(p0109) discusses various actions taken on already existing
statistics. There is no comparison between Vos (p0109) and
Claim 19.

Appeal Brief 53.

The Examiner finds that Vos discloses a work table that includes cells.
Answer 20, 21, and 23. We agree with the Examiner’s findings and further
note that Appellant’s arguments are not commensurate with the scope of the
claim. As we indicated above, the core balancing technique is not
patentably distinguishable over the cited prior art, therefore, we sustain the
Examiner’s obviousness rejection of claim 19.
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We also adopt the Examiner’s findings in regard to dependent claims
10-16 and 18, 20, and 21 (Answer 18-24) and sustain the Examiner’s
obviousness rejection of dependent claims 10-16 and 18, 20, and 21 for
reasons articulated by the Examiner discussed above.

DECISION
The Examiner’s obviousness rejections of claims 10-16, 18- 20, and
21 is affirmed.
The Examiner’s anticipation rejection of claims 1-4, 8, 9, and 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)(1)(iv). See
37 C.F.R. § 41.50(f).

AFFIRMED
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