Ex Parte Wang et al

Patent Trial and Appeal Board

Jul 22, 2016

13040748 (P.T.A.B. Jul. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/040,748 03/04/2011 Zhikui Wang
56436 7590 07/26/2016
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.
82467475 3560
EXAMINER
NGUYEN, TANH Q
ART UNIT PAPER NUMBER
2118
NOTIFICATION DATE DELIVERY MODE
07/26/2016 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 ZHIKUI WANG, CULLEN E. BASH,
CHANDRAKANT PATEL, and NIRAJ TOLIA
Appeal2015-000504
Application 13/040,748
Technology Center 2100
Before JOHN P. PINKERTON, CARLL. SILVERMAN, and
SCOTT B. HOWARD, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-15, which are all of the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Hewlett-Packard Development Company, LP as the
real party in interest. App. Br. 3.
Appeal2015-000504
Application 13/040,748
STATEMENT OF THE CASE
Introduction
Appellants' provide the following description of the disclosed and
claimed invention:
Example systems, methods and articles of manufacture to
cap data center power consumption are disclosed. A disclosed
example system includes a group power capper to allocate a
fraction of power for a data center to a portion of the data center,
a domain power capper to allocate hosted applications to a server
of the portion of the data center to comply with the allocated
portion of the power, and a local power capper to control a first
state of the server and a second state of a cooling actuator
associated with the portion of the data center to comply with the
allocated portion of the power.
Abstract. 2
Claim 1 is illustrative and reproduced below (with the disputed
limitations emphasized):
1. A system comprising:
a group power capper to allocate a fraction of power for a
data center to a portion of the data center based on an estimated
power consumption of the portion of the data center, wherein
the estimated power consumption includes an estimated power
consumption of a cooling actuator associated with the portion
of the data center;
a domain power capper to allocate hosted applications to
a server of the portion of the data center to comply with the
allocated fraction of the power; and
2 Our Decision refers to the Final Action mailed Dec. 31, 2013 ("Final
Act."); Appellants' Appeal Brief filed Apr. 4, 2014 ("App. Br."); the
Examiner's Answer mailed June 19, 2014 ("Ans."); and, the original
Specification filed Mar. 4, 2011 ("Spec.").
2
Appeal2015-000504
Application 13/040,748
a local power capper to control a state of the server and a
state of the cooling actuator associated with the portion of the
data center based on an estimated power consumption of the
server and the estimated power consumption of the cooling
actuator to comply with the allocated fraction of the power.
App. Br. 20 (Claims App.).
Rejections on Appeal
Claims 2 and 3 stand rejected under 35 U.S.C. § 112, first paragraph,
as failing to comply with the written description requirement. Final Act. 3.
Claims 2--4, 7-10, 12, and 15 stand rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which the applicants regard as the
invention. Final Act. 3---6.
Claims 1-10 stand rejected under 35 U.S.C. § 103(a) as being obvious
over Tolia et al. (WO 2010/104521 Al, published Sept. 16, 2010) ("Tolia"),
Ranganathan et al. (US 7,861,102 Bl, issued Dec. 28. 2010)
(Ranganathan"), McCarthy et al. (US 2010/0205469 Al, published Aug. 12,
2010) ("McCarthy"), and Kato et al. (US 2009/0259345 Al, published Oct.
15, 2009) ("Kato"). Final Act. 7-11.
Claims 11-15 stand rejected under 35 U.S.C. § 103(a) as being
obvious over Tolia, Ranganathan, McCarthy, Kato, and Bose et al. (US
2011/0289329 Al, published Nov. 24, 2011) ("Bose") or Bose and Fletcher
(US 2012/0030356 Al, published Feb. 2, 2012). Final Act. 7, 11.
3
Appeal2015-000504
Application 13/040,748
ANALYSIS
Rejections under§ 112, first and second paragraphs
Regarding the rejection of claims 2 and 3 under§ 112, first paragraph,
Appellants argue the After-Appeal Amendment filed February 17, 2014,
presents the claims in better form for consideration on appeal and does not
change the scope of the claims, and Appellants request the amendment to be
entered to perfect these claims for allowance. App. Br. 8-9. Appellants
make the same argument and request with respect to claims 2--4, 7-10, 12,
and 15, which were rejected under§ 112, second paragraph. Id. at 9. As
noted by the Examiner, the After-Appeal Amendment relied on by
Appellants was not entered. See Advisory Action mailed Feb. 25, 2014.
Because Appellants do not argue the merits of the rejections,3 we proforma
sustain the Examiner's rejections under§ 112, first and second paragraphs.
Rejections under§ 103(a) for obviousness
Regarding claims 1, 6, and 11, Appellants contend Tolia does not
teach, suggest, or render obvious "'controlling/configuring a state of the
cooling actuator', at least because Tolia does not select a state for the
cooling actuator based on an estimated power consumption of the cooling
3 Appellants' arguments concerning support in the Specification for the
limitation "selecting the state of the cooling actuator being based on the
estimated power consumption of the portion of the data center" (see Reply
Br. 2--4) are waived as they were raised for the first time in the Reply Brief
without a showing of good cause. See 37 C.F.R. § 41.41(b)(2) (2012); see
also Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative)
("[T]he reply brief [is not] an opportunity to make arguments that could
have been made in the principal brief on appeal to rebut the Examiner's
rejections, but were not.").
4
Appeal2015-000504
Application 13/040,748
actuator." App. Br. 11, 15. In particular, Appellants argue Tolia does not
teach or suggest "'controlling/configuring a state of the cooling actuator
based on an estimated power consumption of the cooling actuator' at least
because the settings of the resource actuators are controlled based on the
environment conditions at the entities and not based on an estimated power
consumption of the cooling actuator." Id. at 11-12, 15; Reply Br. 6, 9-10.
Appellants also argue Ranganathan, McCarthy, Kato, Bose, and Fletcher fail
to remedy the deficiencies of Tolia. App. Br. 12-13, 15-18; Reply Br. 6-7,
10-12.
We are not persuaded by Appellants' arguments that the Examiner has
erred. Citing Tolia, paragraphs 57 (last four lines), 65 (last three lines), 69
(last six lines), 70 (first five lines), and 75 (last three lines), the Examiner
finds Tolia teaches "controlling/configuring/selecting a state for the cooling
actuator being based on an estimated power consumption of the cooling
actuator.'' Ans. 14--15. For the reasons stated by the Examiner, we agree
with the Examiner's finding. In particular, we agree Tolia teaches (1) the
resource controller uses various power models, such as resource power
models, to determine optimized settings of the resource actuators (see i-fi-1 57
(last four lines) and 69 (last six lines)) and (2) the resource power models
relate the settings of the resource actuators to power consumption levels of
the resource actuators (see i165 (last three lines)). In other words, we agree
with the Examiner's finding that Tolia teaches or suggests
"controlling/configuring/selecting a state for the cooling actuator being
based on an estimated power consumption of the cooling actuator" because
Tolia teaches or at least suggests using resource power models, such as a
cooling actuator power model, to determine and control the setting or state
5
Appeal2015-000504
Application 13/040,748
of the cooling actuator based on power consumption or estimated power
consumption of the cooling actuator. Although Appellants discuss
paragraphs 57, 69, and 70 of Tolia and argue that "various power models" or
"status assignments" of Tolia do not teach the disputed limitation (see Reply
Br. 5---6, 9-10), these arguments do not rebut the Examiner's findings, and
are not persuasive, because they are conclusory and fail to address the
Examiner's findings regarding paragraphs 65 and 75 of Tolia.
We are also not persuaded by Appellants arguments that the other
references cited by the Examiner fail to cure the deficiencies of Tolia
because, for the reasons stated supra, there are no such deficiencies in Tolia.
Accordingly, we sustain the Examiner's rejection of claims 1, 6, and
11 for obviousness under 35 U.S.C. § 103(a). We also sustain the
Examiner's rejection of dependent claims 2-5, 7-10, and 12-15, which are
not argued separately. See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
We proforma affirm the Examiner's rejection of (1) claims 2 and 3
under§ 112, first paragraph, and (2) claims 2--4, 7-10, 12, and 15 under
§ 112, second paragraph.
We affirm the Examiner's rejection of claims 1-15 under 35 U.S.C.
§ 103(a).
6
Appeal2015-000504
Application 13/040,748
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).
AFFIRMED
7