Joseph W. Cropper et al.

Patent Trials and Appeals Board

Oct 1, 2019

14991938 - (D) (P.T.A.B. Oct. 1, 2019)

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.
14/991,938 01/09/2016 Joseph W. Cropper ROC920150243US2 8401
46296 7590 10/01/2019
MARTIN & ASSOCIATES, LLC
P.O. BOX 548
CARTHAGE, MO 64836-0548
EXAMINER
KIM, DONG U
ART UNIT PAPER NUMBER
2196
NOTIFICATION DATE DELIVERY MODE
10/01/2019 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):
derekm@ideaprotect.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JOSEPH W. CROPPER, JENNIFER D. MULSOW,
and TAYLOR D. PEOPLES
____________________

Appeal 2018-002749
Application 14/991,9381
Technology Center 2100
____________________
Before CAROLYN D. THOMAS, DEBRA K. STEPHENS, and
IRVIN E. BRANCH, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 2, and 4–19, which are all of the claims pending in the application.
We have jurisdiction under 35 U.S.C. § 6(b). Claim 3 has been cancelled.
We REVERSE.

CLAIMED SUBJECT MATTER
According to Appellants, the claims are directed to dynamically
setting an order of optimization of physical host machines in a computing

1 According to Appellants, the real party in interest is International Business
Machines Corporation (App. Br. 1).
Appeal 2018-002749
Application 14/991,938

2
environment based on policies (Abstract). Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. An apparatus comprising:

at least one processor;

a memory coupled to the at least one processor;

an optimizer for optimizing placement of virtual machines on a
plurality of physical hosts; and

an ordering policy mechanism residing in the memory and
executed by the at least one processor that provides an ordered
list of physical hosts to the optimizer with an order for optimizing
the physical hosts determined by at least one ordering policy,
wherein the at least one ordering policy is defined by a system
administrator and when evaluated in conjunction with current
conditions indicates a priority for optimizing the plurality of
physical hosts.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Hueter
Innan
US 2013/0173809 A1
US 2016/0004552 A1
July 4, 2013
Jan. 7, 2016
REJECTION
The Examiner has rejected claims 1, 2 and 4–19 under 35 U.S.C.
§ 103 as unpatentable over Innan and Hueter (Final Act. 5–20).

Appeal 2018-002749
Application 14/991,938

3
ANALYSIS
Appellants contend their invention as recited in claims 1, 2, and 4–19,
is patentable over Innan and Hueter (App. Br. 4–13). Specifically,
Appellants contend Innan fails to disclose “provides an ordered list of
physical hosts to the optimizer with an order for optimizing the physical
hosts determined by at least one ordering policy” and “wherein the at least
one ordering policy is defined by a system administrator and when evaluated
in conjunction with current conditions indicates a priority for optimizing the
plurality of physical hosts,” as recited in claim 1 (App. Br. 4–7; Reply Br. 2–
4). More specifically, Appellants argue Innan does not teach the recited:
“[an] ordering policy [is] defined by a system administrator” and “an
ordered list of physical hosts to the optimizer with an order for optimizing
the physical hosts” (App. Br. 4–7).
First, Appellants contend Innan fails to disclose an “ordering policy,”
as recited in claim 1 (App. Br. 4–5; Reply Br. 2–3). According to
Appellants, Innan does not use a policy to create the rank in Innan; rather,
“[t]here appears to be preset logic in Innan to determine ranking of the
servers based on throughput. The Examiner appears to interpret this preset
logic to create the rank as the claimed policy” (App. Br. 5).
We are not persuaded by Appellants’ contentions. Appellants’
Specification does not define explicitly the term “ordering policy”; however,
Appellants’ Specification describes “ordering policies 422 comprise[ ] fixed
policies 530 and dynamic policies 532” (Spec. ¶ 63). Dynamic policies
“may be described by an expression 538 which includes[ ] one or more hosts
and one or more host conditions” (id. at ¶ 64). Examples of host conditions
Appeal 2018-002749
Application 14/991,938

4
include time based conditions, economic conditions, or utilization conditions
(id.).
In the above example, the list of hosts is first sorted on a dynamic
ordering policy. In this case, it is the cost_per_cycle. Note that
this ordering policy could be more complex to include sorting by
other conditions such as processor utilization and SLA
percentage, and other conditions that change over time
(Spec. ¶ 682).
We agree with the Examiner’s finding that Appellants’ Specification
describes the “list of hosts is first sorted on a dynamic ordering policy. In
this case, it is the cost_per_cycle. . . . this ordering policy could be more
complex to include sorting by other conditions such as processor utilization
and SLA percentage, and other conditions that change over time” (Ans. 3
(citing Spec. ¶ 68)).
Innan teaches:
The management computer stores a server rank which is
configured for each of the plurality of server apparatuses and
represents a rank of a throughput of a server apparatus, and a
storage rank which is configured for each of the plurality of
storage apparatuses and represents of a throughput of a storage
apparatus
(Innan ¶ 11 (emphases added); Final Act. 7–9 (quoting Innan ¶ 11); Ans. 3–
4). Innan additionally discloses “the management computer selects . . . a
server apparatus having a server rank equal to the required server rank of the
target virtual machine (Innan ¶ 11). Thus, we determine Innan’s disclosure
of ranking servers based on throughput teaches sorting of hosts based on
various conditions and choosing a host meeting desired conditions (see Final

2 We note the Examiner cites to the PGPub; however, we cite to the original
Specification as filed on January 9, 2016.
Appeal 2018-002749
Application 14/991,938

5
Act. 7–8; Ans. 3–4; Spec. ¶ 65). Thus, Innan’s sorting and ranking of hosts
or servers based on the various host conditions, e.g., throughput of the
server, teaches the claimed “ordering policy” (id. at ¶ 11, Ans. 3–4).
Second, Appellants contend Innan fails to teach policies are “defined
by the system administrator” (App. Br. 5–6; Reply Br. 3–4). Specifically,
Appellants argue “[t]he logic to rank the servers as described in Innan is not
defined by a system administrator . . . it is preset logic” (App. Br. 5).
We are not persuaded by Appellants’ argument (App. Br. 5). Innan
teaches a server apparatus has a rank of throughput and a storage apparatus
has a rank of throughput (Innan ¶ 11). The Examiner finds (Ans. 3–4) and
we agree, Innan describes “management computer 100 configures the server
QoS rank” (Innan ¶¶ 44–45; Final Act. 8–9; Ans. 4). Thus, Innan’s policy
for ranking is defined by an “administrator” just as the recited “ordering
policy” described in the Specification, is defined by an administrator (App.
Br. 5–6; Ans. 3–4; Reply Br. 3–4). Accordingly, we find Innan teaches “one
ordering policy defined by a system administrator,” as recited in claim 1.
Appellants next contend Innan fails to teach ordered list “indicates a
priority order for optimizing the plurality of physical hosts” (App. Br. 6– 7;
Reply. Br. 4). Specifically, Appellants contend Innan’s ranking is “used to
determine where to place VMs while optimizing a host” which is different
from the claimed “ordered list” to “determine an order for optimizing hosts”
(App. Br. 6).
We agree with Appellants. In the Final Action, the Examiner seems
to indicate that the ranking is an ordered list (Final Act. 7–9), providing
quotes from various paragraphs of Innan without any accompanying
explanation as to what is being relied upon, or more importantly, what
Appeal 2018-002749
Application 14/991,938

6
particular disclosure of Innan teaches the specific elements of the limitations
(id. at 7–9; see also Ans. 3–4). The Examiner does not provide any response
to Appellants’ contentions in the Answer.
As discussed above, Innan teaches the management computer
evaluates the throughput of the servers and ranks the servers based on that
throughput (Innan ¶ 11). Thus, the conditions of the computer system are
being evaluated based on the throughput of the servers of Innan (id.).
However, the Examiner has failed to explain with specificity how this
ranking is an order for optimizing the hosts. Rather, paragraph 11 of Innan
describes Innan’s “management computer” “determines, on the basis of the
load on the plurality of virtual machines, whether or not to migrate the
virtual machine . . . [and] selects, . . . a server apparatus having a server rank
equal to the required server rank of the target virtual machine, from among
the plurality of server apparatuses” (Innan ¶ 11 (emphasis added); Final 7–9;
Ans. 3–4). Thus, paragraph 11 of Innan describes using the ranking to
migrate to a destination having the same ranking, but Innan does not teach
creating an ordered list that indicates an order for optimizing the hosts, i.e.,
the ranking does not indicate an order for optimizing the hosts (Innan ¶ 11;
Final 7–9; Ans. 3–4).
Without more of an explanation from the Examiner setting forth with
specificity how Innan and Heuter’s disclosures teach the disputed limitation,
we would be required to speculate as to upon what the Examiner relies. We
will not speculate. Accordingly, we are constrained by the record to
determine the Examiner has not shown where Innan teaches “an ordered list
of physical hosts to the optimizer with an order for optimizing the physical
Appeal 2018-002749
Application 14/991,938

7
hosts,” as recited in claim 1 and commensurately recited in independent
claims 11 and 19.
Claims 2 and 4–10, which depend from claim 1 and claims 12–18,
which depend from claim 11, stand with their respective independent claims.
Accordingly, we do not sustain the rejection of claims 1, 2, and 4–19 under
35 U.S.C. § 103(a) as being unpatentable over Innan and Hueter.
DECISION
For the reasons above, we reverse the rejection of claims 1, 2 and 4–
19 under 35 U.S.C. § 103(a) as being unpatentable over Innan and Hueter.
REVERSED