International Business Machines Corporation

Patent Trials and Appeals Board

Mar 31, 2021

2019006316 (P.T.A.B. Mar. 31, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
15/332,508 10/24/2016 James T. Klosowski YOR920090059US2
(24069Z)
1920
48233 7590 03/31/2021
SCULLY, SCOTT, MURPHY & PRESSER, P.C.
400 GARDEN CITY PLAZA
SUITE 300
GARDEN CITY, NY 11530
EXAMINER
ZHAI, KYLE
ART UNIT PAPER NUMBER
2612
NOTIFICATION DATE DELIVERY MODE
03/31/2021 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):
IBMPAIRENotify@ssmp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES T. KLOSOWSKI and
CHRISTOPHER J. MORRIS
Appeal 2019-006316
Application 15/332,508
Technology Center 2600
Before JEAN R. HOMERE, BRADLEY W. BAUMEISTER, and
MICHAEL J. STRAUSS, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 3–11, 13–16 and 18–20. See Final

1 We refer to the Specification, filed October 24, 2016 (“Spec.”); Final
Office Action, mailed February 12, 2018 (“Final Act.”); Appeal Brief, filed
August 13, 2018 (“Appeal Br.”); Examiner’s Answer, mailed December 13,
2018 (“Ans.”); and Reply Brief, filed February 12, 2019 (“Reply Br.”).
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as the International
Business Machines Corporation. Appeal Br. 2.
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Application 15/332,508
2
Act. 1. Claims 2, 12, and 17 are canceled. Appeal Br. 40, 42, 45 (Claims
Appendix). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims relate to managing strategies for load balancing among
graphics processors. Claim 1. Claim 1, reproduced below, is illustrative of
the claimed subject matter:
1. A method of managing graphics load balancing strategies,
comprising:
using a plurality of rendering servers to render concurrently a
multitude of graphics frames for a display area on a display
device, wherein each of the rendering servers has an
associated workload;
identifying a plurality of load balancing strategies for balancing
the workloads on the rendering servers, each of the load
balancing strategies being a respective one technique for
partitioning the display area into a plurality of smaller regions
and assigning said plurality of smaller regions of the display
area to the rendering servers, and one or more of the load
balancing strategies are user-defined by a user;
using a system controller to implement the load balancing
strategies, including using the system controller to receive the
one or more user-defined load balancing strategies from the
user; and
a manager communicating with the system controller to receive
information from the system controller, to analyze the
information received from the system controller, and to pass
resulting information to the system controller, including the
system controller passing the one or more user-defined load
balancing strategies to the manager;
the manager performing an execution loop for dynamically
switching among the plurality of the load balancing strategies
over a period of time to re-balance the workloads on the
rendering servers by selecting different ones of the load
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Application 15/332,508
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balancing strategies for implementation at different times in
said period of time and communicating the selected load
balancing strategies to the system controller for
implementation by the system controller, said execution loop
including:
the manager initializing process settings to default values
including providing initial display tile partitions and
assignments for each rendering server, wherein the system
controller implements one of the load balancing strategies,
and
for each of the load balancing strategies implemented by the
system controller,
the manager obtaining performance statistics from the
system controller including display configuration
performance statistics for each server when the system
controller implements said each of the load balancing
strategies,
the manager analyzing the performance statistics and
additional information obtained from the system
controller to repartition, resize and reassign the
partitions based on the performance feedback and the
one of the load balancing strategies in use, and to
determine when a different one of the load balancing
strategies is needed,
when a different one of the load balancing strategies is
needed, the manager selecting another one of the load
balancing strategies from said plurality of load
balancing strategies, the manager communicating said
another one of the load balancing strategies to the
system controller, wherein the system controller
executes said another one of the load balancing
strategies,
the manager obtaining new performance statistics from the
system controller when said another one of the load
balancing strategies is executed, and
the manager repeating the obtaining performance
statistics, analyzing the performance statistics and
additional information, selecting another one of the
load balancing strategies, communicating said another
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one of the load balancing strategies to the system
controller, and obtaining new performance statistics
from the system controller for a specified time.
REFERENCES
The prior art relied upon by the Examiner is: 3
Name Reference Date
Bakalash US 7,800,619 B2 Sept. 21, 2010
Carlson US 7,882,501 B1 Feb. 1, 2011
Klosowski US 9,479,358 B2 Oct. 25, 2016
Diard US 2005/0041031 A1 Feb. 24, 2005
Kelley US 2006/0267992 A1 Nov. 30, 2006

REJECTIONS
Claims 1, 4–11, 14–16, and 204 stand rejected on the ground of
nonstatutory obviousness-type double patenting5 as being unpatentable over
claims 1, 2, 4–7, 9, 10 and 15 of U.S. Patent No. 9,479,358 in view of Diard.
Final Act. 4–26.
Claims 1, 3–6, 8–11, 13–16, 18, and 19 stand rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Diard, Kelley, and Carlson.
Final Act. 26–41.

3 All citations to the references use the first-named inventor only.
4 The Examiner erroneously includes canceled claims 2, 12, and 17 among
the claims listed as rejected. Final Act. 5; c.f. Appeal Br. 34.
5 Although the Examiner characterizes the rejection as provisional, because
the rejection is based on the claims of an issued patent rather than a co-
pending application, we treat the rejection as non-provisional for purposes of
this appeal. See MPEP § 804.
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Claim 7 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Diard, Kelley, Carlson, and Applicant’s Admitted Prior
Art (AAPA). Final Act. 41.
Claim 20 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Diard, Kelley, Carlson, and Bakalash. Final Act. 42– 44.
STANDARD OF REVIEW
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
OPINION
We have considered in this Decision only those arguments Appellant
actually raised in the Briefs. Arguments not made are waived. See
37 C.F.R. § 41.37(c)(1)(iv) (2018).
To the extent consistent with our analysis herein, we adopt as our own
the findings and reasons set forth by the Examiner in (1) the action from
which this appeal is taken and (2) the Examiner’s Answer in response to
Appellant’s Appeal Brief, and concur with the conclusions reached by the
Examiner. We highlight the following for emphasis.
Non-Statutory Double Patenting Rejection
The Examiner finds 1, 2, 4–12, 14–17, and 20, although not identical
to claims 1, 2, 4–7, 9, 10, and 15 of U.S. Patent No. 9,479,358 of Diard,
have the same scope as the patented claims. Final Act. 5–6. Appellant
contends the rejection is improper, arguing the patented claims do not
include (i) that “the execution loop of the manager . . . is used to
dynamically switch among a plurality of load balancing strategist[s]”
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(ii) “the controller passing the one or more user-defined load balancing
strategies to the man[a]ger”; and (iii) “communications between the manager
and the controller in that execution loop.” Appeal Br. 34–35.
The Examiner responds, as follows:
[A]pplicant fails to further specify[] how the system controller
and the manager are different from generic software programs.
Under broadest reasonable interpretation, the system controller
and the manager are merely program instructions which can be
executed by a CPU. It is well known in the art, software
programs are capable of sharing and communicating information
between each other. Though the claims of U.S. Patent 9,479,358
do not explicitly use the terms system controller and manager,
however, the claims of U.S. Patent 9,479,358 recite similar
functions as the present application. Although the conflicting
claims are not identical, they are not patentably distinct from
each other because the present claims have the same scope of the
patent.
Ans. 5–6.
Appellant’s contentions are unpersuasive of reversible Examiner
error. Claim 1 of the ‘358 patent as issued reads as follows with labels and
emphasis added identifying subject matter alleged to be absent from the
patented claims:
1. A method of managing graphics load balancing strategies,
comprising:
using a plurality of rendering servers to render concurrently a
multitude of graphics frames for a display area on a display
device, wherein each of the rendering servers has an associated
workload;
identifying a plurality of load balancing strategies for
balancing the workloads on the rendering servers, each of the
load balancing strategies being a respective one technique for
partitioning the display area into a plurality of smaller regions
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and assigning said plurality of smaller regions of the display area
to the rendering servers; and
[(i)] dynamically switching among the plurality of the load
balancing strategies over a period of time to re-balance the
workloads on the rendering servers, including
using a system controller to implement the load balancing
strategies, and
using a manager to select different ones of the load balancing
strategies for implementation at different times in said period of
time and for communicating the selected load balancing
strategies to the system controller; and wherein:
[(ii) and (iii)] the system controller accepts new load
balancing strategies from a user, and passes information to the
manager, said information including display configuration
performance statistics for each server and user-defined load
balancing policy information; and
the manager obtains the performance statistics for each server
from the system controller, obtains updated display
configuration information from the system controller, adds or
removes load balancing strategies and rendering servers,
determines when a new load balancing strategy is to be
implemented, provides an initial display tile partitions and
assignments for each of the rendering servers, and repartitions,
resizes and reassigns the partitions based on the performance
feedback and the one of the load balancing strategies in use.

Contrary to Appellant’s contention, each of the limitations argued to
be unique to the pending claims are found in claim 1 of the ‘358 patent as
indicated above. Furthermore, in connection with Appellant’s
argument (iii), not only does claim 1 recite that the system controller passes
information to the manager, i.e., communicates with it, but we further agree
with the Examiner, and Appellant does not rebut, that “[i]t [was] well known
in the art [that] software programs are capable of sharing and
communicating information between each other.” Ans. 5. Accordingly, we
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sustain the Examiner’s non-statutory double patenting rejection of pending
claims 1, 4–11, 14–16, and 20.
Obviousness Rejections Under 35 U.S.C. § 103(a)
The Examiner finds Diard’s description of adaptive load balancing in
a multi-processor graphics processing system teaches the majority of
limitations of claim 1. Final Act. 26–33. However, the Examiner finds
“[t]hough Diard teaches dynamically switching load balancing over a period
of time to re-balance the workloads; Diard does not expressly disclose
‘identifying a plurality of load balancing strategies.’” Id. at 33 (emphasis
omitted). To remedy the admitted shortfall, the Examiner finds Kelley’s
system of video process using multiple video processing units (VPUs)
explicitly teaches the identified limitation. Id. According to the Examiner,
the reason for combining the teachings of Diard and Kelley is to share
rendering tasks among processors and provide improved performance and
capabilities. Id. at 34.
Further finding that the combination of Diard and Kelly does not
expressly disclose receiving balancing strategies from a user, the Examiner
directs attention to the user interface of Carlson’s application server
environment that allows an administrator to adjust the weighting of load
balancing factors. Id. at 35. The Examiner’s reasoning for combining the
teachings of Diard and Kelley with that of Carlson is to permit a user to
adjust load balancing setting according to user preferences. Id.
Appellant broadly contends the rejection is improper, arguing the
differences between the claims and the prior art, as follows:
[T]he prior art does not disclose or render obvious the way
in which, in Appellant’s invention, the system controller and the
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manager work together, and the way this system controller and
manager communicate with each other in an execution loop, to
dynamically switch among a plurality of load balancing
strategies, as described in claims 1, 11 and 16.
In Appellants’ invention, the manager and the controller
communicate and interact in a unique way to monitor system
performance, obtain performance statistics, analyze those
performance statistics, and determine the appropriate load
balancing strategy. The manager sends the necessary process
information to the controller, which executes the rendering of the
next frame.
Appeal Br. 31; see also id. at 25.
Analysis
Appellant’s contentions are unpersuasive of reversible Examiner error
because they do not substantively address the Examiner’s findings. Instead,
Appellant merely alleges the system controller and manager work together
and communicate in a way that is unique. Id. at 31. In particular, Appellant
does not address the Examiner’s findings, spanning approximately eight
pages of the Final Action, identifying specific portions of the references
found to teach each of the limitations of claim 1. Although Appellant
further repeats the claim language and asserts the recited limitations are not
found in the prior art (id. at 32–33), no explanation is provided as to why
that is the case.
This is insufficient to demonstrate patentability. Our reviewing court
has explicitly held that “[37 C.F.R. §] 41.37 require[s] . . . more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.” In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). The
Examiner’s findings and explanations are reasonable, based on the broadest
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reasonable interpretation of the claims, and Appellant has not demonstrated
error in the Examiner’s findings.
We are further unpersuaded the Examiner has engaged in
impermissible hindsight reconstruction of the claims in combining the
teachings of the prior art. Appeal Br. 33. Other than allege the combination
is improper, Appellant fails to address the Examiner’s reasoning for
combining the teachings of Kelley, Diard, and Carlson discussed above. As
explained by the Examiner:
[I]t must be recognized that any judgment on obviousness is in a
sense necessarily a reconstruction based upon hindsight
reasoning. But so long as it takes into account only knowledge
which was within the level of ordinary skill at the time the
claimed invention was made, and does not include knowledge
gleaned only from the applicant’s disclosure, such a
reconstruction is proper.
Ans. 4 (citing In re McLaughlin, 443 F.2d 1392 (CCPA 1971)).
In the present case, the Examiner has articulated reasoning with
rational underpinnings sufficient to justify the legal conclusion of
obviousness. See Final Act. 33–35. And Appellant has provided
insufficient evidence or argument to persuade us that the Examiner erred in
combining the teachings of Kelley, Diard, and Carlson. See generally
Appeal Br.
Although Appellant addresses certain of the Examiner’s findings in
the Reply Brief (Reply Br. 3–10), the newly presented arguments are, in the
absence of a showing of good cause, untimely and waived. 37 C.F.R.
§ 41.41(b)(2) (2016). See In re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir. 2000)
(noting that an argument not first raised in the brief to the Board is waived
on appeal); Ex parte Nakashima, 93 USPQ2d 1834, 1837 (BPAI 2010)
Appeal 2019-006316
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11
(explaining that arguments and evidence not timely presented in the
principal Brief, will not be considered when filed in a Reply Brief, absent a
showing of good cause explaining why the argument could not have been
presented in the Principal Brief); Ex parte Borden, 93 USPQ2d 1473, 1477
(BPAI 2010) (informative) (“Properly interpreted, the Rules do not require
the Board to take up a belated argument that has not been addressed by the
Examiner, absent a showing of good cause.”).
For the reasons discussed above, Appellant’s contentions are
unpersuasive of reversible error in the Examiner’s rejection of claim 1.
Accordingly, we sustain the Examiner’s rejection of claim 1 under 35 U.S.C.
§ 103(a) together with the rejection of claims 11 and 16 which are argued
together with claim 1. We further sustain the rejections of dependent claims
3–10, 13–15, and 18–20 which are not argued separately with particularity.
CONCLUSION
We affirm the Examiner’s rejection of claims 1, 4–11, 14–16, and 20
on the ground of nonstatutory obviousness-type double patenting.
We affirm the Examiner’s rejection of claims 1, 3–6, 8–11, 13–16, 18,
and 19 under pre-AIA 35 U.S.C. § 103(a) over Diard, Kelley, and Carlson.
We affirm the Examiner’s rejection of claim 7 under pre-AIA
35 U.S.C. § 103(a) over Diard, Kelley, Carlson, and AAPA.
We affirm the Examiner’s rejection of claim 20 under pre-AIA
35 U.S.C. § 103(a) over Diard, Kelley, Carlson, and Bakalash.

Appeal 2019-006316
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12
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4–11, 14–
16, 20
9,479,358, Diard 1, 4–11,
14–16, 20

1, 3–6, 8–
11, 13–16,
18, 19
103(a) Diard, Kelley,
Carlson
1, 3–6, 8–
11, 13–16,
18, 19

7 103(a) Diard, Kelley,
Carlson, Applicant,
Admitted Prior Art
7
20 103(a) Diard, Kelley,
Carlson, Bakalash
20
Overall
Outcome
1, 3–11,
13–16, 18–
20

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED