Justin Langseth et al.

Patent Trials and Appeals Board

Aug 27, 2019

15190153 - (D) (P.T.A.B. Aug. 27, 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.
15/190,153 06/22/2016 Justin LANGSETH 022103-0447723 7013
909 7590 08/27/2019
Pillsbury Winthrop Shaw Pittman, LLP
PO Box 10500
McLean, VA 22102
EXAMINER
CHBOUKI, TAREK
ART UNIT PAPER NUMBER
2165
NOTIFICATION DATE DELIVERY MODE
08/27/2019 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):
docket_ip@pillsburylaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JUSTIN LANGSETH, JORGE ALARCON,
RUHOLLAH FARCHTCHI, and FARZAD AREF1
____________________

Appeal 2018-002416
Application 15/190,153
Technology Center 2100
____________________

Before JENNIFER S. BISK, JOYCE CRAIG, and
STEVEN M. AMUNDSON, Administrative Patent Judges.

BISK, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1–20, which are all claims pending in the application.
We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing was held on
August 13, 2019.
We affirm.

1 Appellants identify the real party in interest as Zoomdata, Inc. Appeal
Br. 2.
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BACKGROUND2
Appellants’ disclosed embodiments and claimed invention relate to
“prioritizing execution of plans for obtaining and/or processing data from
one or more data sources.” Spec. ¶ 2. Claim 1, reproduced below, is
illustrative of the subject matter on appeal:
1. A computer-implemented method of prioritizing
execution of plans for obtaining and/or processing data based
on partial execution of the plans, the method being
implemented by a computer system that includes one or more
physical processors executing one or more computer program
instructions that, when executed, perform the method, the
method comprising:
determining, by the computer system, at least a first plan
and a second plan for obtaining data from one or more data
sources and/or processing the obtained data;
executing, by the computer system, the first plan and the
second plan;
estimating, by the computer system, based on partial
execution of the first plan, a first cost for fully executing the
first plan;
estimating, by the computer system, based on partial
execution of the second plan, a second cost for fully executing
the second plan, wherein the first cost and the second cost are
estimated after the execution of the first plan and the execution
of the second plan have begun and before the execution of the
first plan and the execution of the second plan are completed;
and

2 Throughout the Decision we have considered the Specification filed June
22, 2016 (“Spec.”), the Final Rejection mailed April 27, 2017 (“Final Act.”),
the Appeal Brief filed July 24, 2017 (“Appeal Br.”), the Examiner’s Answer
mailed November 2, 2017 (“Ans.”), and the Reply Brief filed December 29,
2017 (“Reply Br.”)
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prioritizing, by the computer system, the execution of
one of the first plan or the second plan over at least the
execution of the other one of the first plan or the second plan
based on comparison of the estimated first cost and the
estimated second cost.
Appeal Br. 10 (Claims App’x).
REJECTIONS
Claims 1 and 15 stand rejected for nonstatutory obviousness-type
double patenting as being unpatentable over claims 1 and 12 of US Patent
No. 9,389,909. Final Act. 3–4.
Claims 1–5, 7, 8, 10–18, and 20 stand rejected under 35 U.S.C. § 103
as being unpatentable over the combination of US 2012/0203762 A1,
published Aug. 9, 2012 (“Kakarlamudi”), US 2008/0065588 A1, published
Mar. 13, 2008 (“Aldrich”), and US 2007/0162425 A1, published July 12,
2007 (“Betawadkar-Norwood”). Final Act. 5–12.
Claims 6 and 19 stand rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Kakarlamudi, Aldrich, Betawadkar-
Norwood, and US 2013/0297646 A1, published Nov. 7, 2013 (“Watari”).
Final Act. 12–13.
Claim 9 stands rejected under 35 U.S.C. § 103 as being unpatentable
over the combination of Kakarlamudi, Aldrich, Betawadkar-Norwood, and
US 2015/0046429 A1, published Feb. 12, 2015 (“Eblighatian”). Final Act.
13–14.
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ANALYSIS
We have reviewed the § 103 rejections in light of Appellants’
arguments that the Examiner erred. For the reasons explained below, we
concur with the Examiner’s conclusions concerning unpatentability under
§ 103. We adopt the Examiner’s findings and reasoning for the § 103
rejections in the Final Office Action and Answer. See Final Act. 5–15; Ans.
2–5. We add the following to address and emphasize specific findings and
arguments.
Double-Patenting Rejection of Claims 1 and 15
The Examiner rejects claims 1 and 15 on the ground of non-statutory
obviousness-type double patenting. Final Act. 3–4.
Appellants do not address this ground in their briefing. The Examiner
does not address this rejection in the Answer and has not officially
withdrawn the rejection in any other communication of record.
We, therefore, pro forma affirm the Examiner’s rejection of
claims 1 and 15 on the ground of non-statutory obviousness-type double
patenting.
Rejection of Claims 1–20 Under 35 U.S.C. § 103
For the obviousness rejections, Appellants argue independent claims 1
and 15 together. Appeal Br. 5–7; Reply Br. 2–6. Moreover, Appellants do
not make separate arguments for dependent claims 2, 4–12, 14, 16, and 18–
20. As permitted by 37 C.F.R. § 41.37, we decide the Appeal for the
rejection for each of claims 1, 2, 4–12, 14–16, and 18–20 based on claim 1.
See 37 C.F.R. § 41.37(c)(1)(iv). We discuss claims 3, 13, and 17 separately.
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Claim 1
The Examiner relies on a combination of Kakarlamudi and Aldrich for
teaching, “estimating, by the computer system, based on execution of the
first/second plan, a first/second cost for fully executing the first/second plan”
(the “estimating limitations”). Final Act. 5–6 (citing Kakarlamudi ¶ 13;
Aldrich ¶¶ 81, 82); Ans. 3–4 (citing Aldrich abstract, ¶¶ 8, 80).
Appellants argue that the relied upon references do not teach the
estimating limitations. Appeal Br. 5–7. Specifically, Appellants assert that,
“Kakarlamudi (at best) describes using historical information to estimate
costs for different query plans and selecting the query plan with the lowest
costs for execution.” Id.at 5. As for Aldrich, Appellants assert it “describes
calculating an actual cost of the partial execution, as opposed to the claimed
estimation of a cost for fully executing a plan based on partial execution of
the plan.” Id. at 6.
Appellants’ argument does not persuade us of Examiner error because
it is an attack on the references individually, while the Examiner relies on
the combined disclosures in both Kakarlamudi and Aldrich to reject the
claims. Final Act. 5–7; Ans. 2–3. Where a rejection rests on the combined
disclosures in the references, an appellant cannot establish nonobviousness
by attacking the references individually. See In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986). Here, the combined disclosures in
Kakarlamudi and Aldrich teach the estimating limitations. Specifically,
Kakarlamudi teaches estimating the runtime costs for several query plans by
evaluating the number of I/O operations required and CPU requirements of
the query. Kakarlamudi ¶ 13.
In addition, Aldrich teaches partially executing a query plan and
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calculating the actual cost of that partial execution. Aldrich ¶ 80. And
Aldrich “determines whether the query runtime” exceeds a threshold. Id.
¶ 81. Thus, Aldrich teaches determining the actual cost of partial execution
and determining the cost of full execution of the plan using that partial-
execution cost. See Ans. 5. We do not agree with Appellants’ assertion that
“[t]here is no indication in Aldrich to suggest that the calculated cost of the
access plan based on partial execution of the access plan is the cost for fully
executing the access plan.” Reply Br. 3–4. Significantly, Appellants do not
address Aldrich’s statement “the query governor 168 determines whether the
actual query runtime (the actual execution time of the access plan 154) is
greater than the actual runtime threshold . . . .”). Aldrich ¶ 81 (emphasis
added). We agree with the Examiner that a person of skill in the art would
understand that this statement teaches “estimating the cost of a plan by
calculating the actual time and the actual amount of storage (cost) used by
partial execution of the plan.” Ans. 5. We, therefore, find that a person of
ordinary skill in the art would understand that the disclosures of
Kakarlamudi and Aldrich, together, teach estimating the cost for fully
executing a query plan based on the partial execution of that plan—the
estimating limitations.
The Examiner also relies on Kakarlamudi and Aldrich for teaching
“prioritizing, by the computer system, the execution of one of the first plan
or the second plan over at least the execution of the other one of the first
plan or the second plan based on a comparison of the estimated first cost and
the estimated second cost” (the “prioritizing limitation”). Appeal Br. 6
(citing Kakarlamudi ¶¶ 13, 22); Ans. 3 (citing Aldrich ¶ 3).
Appellants argue that because Kakarlamudi does not teach the
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estimating limitation, it “cannot reasonably be relied upon to teach the
claimed prioritization.” Appeal Br. 5. Appellants add that, “[t]here is no
mention in Aldrich . . . of prioritizing an access plan that has already begun
executing over another access plan that has already begun executing, much
less where the prioritization is based on a comparison of a cost for fully
executing the access plan[s].” Id. at 6.
Again, Appellants’ argument does not persuade us of Examiner error
because it is an attack on the references individually, while the Examiner
relies on the combined disclosures in both Kakarlamudi and Aldrich to reject
the claims. Final Act. 5–7; Ans. 2–3. Here, the combined disclosures in
Kakarlamudi and Aldrich teach the prioritizing limitation. Specifically,
Kakarlamudi teaches considering several possible query plans and
“determin[ing] which of those plans will be the most efficient,” for example,
by “choos[ing] the plan with the smallest cost.” Kakarlamudi ¶ 13; see also
Kakarlamudi ¶ 22 (stating that users can save resource execution costs by
setting certain query plans to have low priority). In fact, Appellants agree
that Kakarlamudi describes, “selecting the query plan with the lowest cost
for execution.” Reply Br. 4–5 (citing Kakarlamudi ¶¶ 13, 22).
In addition, Aldrich teaches that “many different access plans for any
particular query may be created, each of which returns the required data set”
and, thus, large databases much select a plan that “provide[s] the required
data at a reasonable cost in time and hardware resources.” Aldrich ¶ 3.
Thus, Aldrich describes an optimization process that generates query plans
and “choos[es] the best performing (in terms of response time or storage
use) or the plans.” Id. Appellants also concede that Aldrich describes,
“selecting an access plan with the lowest predicted cost.” Reply Br. 5.
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We agree with the Examiner that a person of skill in the art would
understand that the disclosures of Kakarlamudi and Aldrich, together, teach
prioritizing one query plan over another based on estimated cost—the
prioritizing limitation.
Claims 3 and 17
The Examiner relies on Aldrich for teaching the limitations recited by
claims 3 and 17, including “estimating . . . based on the partial execution of
the first/second plan, a percentage of the first/second plan that has been
executed” and “wherein the first/second cost for fully executing the
first/second plan is estimated based on a cost of the partial execution of the
first/second plan and the percentage of the first/second plan that has been
executed.” Final Act. 8 (citing Aldrich ¶¶ 81–82), 12.
Appellants argue that, in addition to the deficiencies argued with
respect to claim 1, “there is no indication in Aldrich that a percentage of the
selected access plan that has been executed is estimated based on a partial
execution of the selected access plan.” Appeal Br. 7. According to
Appellants, “although partial execution of the selected access plan may
suggest that less than 100% of the selected access plan is executed in
Aldrich, there is no indication in Aldrich of performing an estimation of a
percentage of the selected access plan that has been executed, much less”
estimating the cost for fully executing the plan based on the percentage of
the plan that has been executed. Reply Br. 7.
We agree that Aldrich does not explicitly refer to estimating the
percentage of a plan that has been executed or using that percentage for
estimating the cost of the fully executing plan. However, as discussed
above, Aldrich does teach partially executing a plan for a time period and
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using the costs of that partial execution to determine the scope of the actual
execution of the query. Aldrich ¶¶ 80–82. Moreover, we agree with the
Examiner that, “[o]ne of ordinary skill in the art would conclude [from
Aldrich’s disclosure] that a gathering cost metric based partial execution
includes a percentage of partial execution.” Ans. 5. In other words, a
person of ordinary skill in the art would understand that to determine the
cost of full execution of running a query using the partial execution costs
would include estimating the percentage of execution included in the partial
execution.
For these reasons, we agree with the Examiner that a person of skill in
the art would understand that claims 3 and 17 would have been obvious over
the combined disclosures of Kakarlamudi, Aldrich, and Betawadkar-
Norwood.
Claim 13
The Examiner relies on Betawadkar-Norwood for teaching the
limitations recited by claim 13, including “wherein the first plan and the
second plan are executed in parallel before the prioritization.” Final Act. 11
(citing Betawadkar-Norwood ¶¶ 6, 40).
Appellants argue that the cited portions of Betawadkar-Norwood
“merely describes that a potential performance gain can be realized by
accessing remote data sources and performing operations on them in
parallel, as the overlapping processing can reduce overall execution time of
such queries,” but “there is nothing in Betawadkar-Norwood that discloses
or suggests that the first plan and the second plan are executed in parallel
before the prioritization.” Appeal Br. 8; Reply Br. 7–8.
We agree that Betawadkar-Norwood does not explicitly refer to
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executing queries in parallel prior to prioritizing the queries. However, the
Examiner does not rely on Betawadkar-Norwood for teaching estimating or
prioritizing queries. Final Act. 5–7, 11. As discussed above, these
limitations would have been obvious in view of the disclosures of
Kakarlamudi and Aldrich. Moreover, the Examiner points to Kakarlamudi
as teaching concurrent execution of query plans. Ans. 5–6 (citing
Kakarlamudi ¶ 22). Indeed, Kakarlamudi states that “query plans can be
executed concurrently with the query plan of the examined entry”
(Kakarlamudi ¶ 22) for purposes of “reduc[ing] the resource execution cost
of the query plan” (id. ¶ 21). In addition, Betawadkar-Norwood states, “[a]
potential performance gain can be realized by accessing remote data sources
and performing operations on them in parallel (asynchronously), as the
overlapping processing can reduce overall execution time of such queries.”
Betawadkar-Norwood ¶ 6. Given these combined disclosures, a person of
ordinary skill in the art would have understood that the efficiencies of
parallel execution would apply to partial executions of queries run prior to
estimating the cost of full execution.
For these reasons, we agree with the Examiner that a person of skill in
the art would understand that claim 13 would have been obvious over the
combined disclosures of Kakarlamudi, Aldrich, and Betawadkar-Norwood.
DECISION
We affirm the Examiner’s decision rejecting claims 1 and 15 for non-
statutory obviousness-type double patenting.
We affirm the Examiner’s decision rejecting claims 1–20 under
35 U.S.C. § 103.

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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