Niall Joseph. Dalton et al.

Patent Trials and Appeals Board

Apr 27, 2020

14137921 - (D) (P.T.A.B. Apr. 27, 2020)

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.
14/137,921 12/20/2013 Niall Joseph Dalton 16764-5 5783
757 7590 04/27/2020
BGL
P.O. BOX 10395
CHICAGO, IL 60610
EXAMINER
TODD, GREGORY G
ART UNIT PAPER NUMBER
2457
MAIL DATE DELIVERY MODE
04/27/2020 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 NIALL JOSEPH DALTON and TREVOR ROBINSON
Appeal 2018-007437
Application 14/137,921
Technology Center 2400
Before JOSEPH L. DIXON, CATHERINE SHIANG, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject Claims 1–3, 6, 8–16, and 18–21. Final Act. 1.
Claims 4, 5, and 17 have been canceled. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “Applicant” as defined in 37 C.F.R.
§ 1.42 (2017). Appellant identifies the real party in interest as III Holdings
2, LLC. Appeal Br. 3.
Appeal 2018-007437
Application 14/137,921
2
CLAIMED SUBJECT MATTER
The claims are directed to a method and data processing node for
assessing activities of a central processing unit running applications.
Claim 1, reproduced below, is representative of the claimed subject matter:
1. A method of monitoring in an application central
processing unit of a data processing node, comprising:
receiving at an application monitoring services module of
the data processing node, a resource monitor command,
wherein the application monitoring services module is on a
management processor unit of the data processing node that is
coupled to the application central processing unit;
configuring, by the application monitoring services
module, an assessment protocol based upon a resource
assessment specification provided in the resource monitor
command in response to receiving the resource monitor
command;
assessing, by the application monitoring services module,
activities of the application central processing unit that arise
from execution of an application running thereon in accordance
with the assessment protocol, wherein assessing activities of the
application central processing unit is performed out-of-band of
processes of the application, wherein assessing activities out-of-
band is performed on the management processor unit and does
not consume resources of the application central processing
unit, wherein out-of-band processes include monitoring and
alerting an external entity of resource consumption exceeding
an operating limit; and
outputting, by the application monitoring services
module, information derived from the assessed activities.
Appeal Br. 17 (Claims App.).
Appeal 2018-007437
Application 14/137,921
3
REFERENCES
The prior art relied upon by the Examiner is:
Kutch US 2005/0038808 A1 Feb. 17, 2005
Gammenthaler, JR. et al. US 2006/0250971 A1 Nov. 9, 2006
Suit US 2012/0167094 A1 June 28, 2012
REJECTIONS2
Claims 1, 2, 6, 10, 12-–14, and 21 stand rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Suit in view of Kutch.3
Claims 3, 8, 9, 11, 15, 16, and 18–20 stand rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Suit in view of Kutch in
further view of Gammenthaler.
OPINION
Appellant argues Claims 1–3, 6, 8–16, and 18–20 as a group. Appeal
Br. 12, 16. We select Claim 1 to represent the group.4
In the Appeal Brief, Appellant argues that Suit “does not include or
suggest assessing activities performed ‘out-of-band’ or communicating any
alerts to an external entity about exceeding an operating limit.” Appeal Br.
12. Appellant contends that the processes performed by the data collection
agents are not “out-of-band processes” because they are deployed onto the

2 The Amendment After Final, filed on July 31, 2017, and entered by the
Examiner on August 10, 2017, overcame the Examiner’s rejections of
Claims 1–3, 6–9, and 21 under 35 U.S.C. § 112 ¶ 2. Therefore, these
rejections are not before us.
3 These Grounds of Rejections have been corrected to remove claims
previously cancelled (e.g., Claim 7) and to shift claims to their appropriate
grounds of rejection based on their dependencies (e.g., Claim 9). These
errors are considered harmless error.
4 See 37 C.F.R. § 41.37(c)(1)(iv).
Appeal 2018-007437
Application 14/137,921
4
network nodes. Appeal Br. 14. Appellant also argues that the messages sent
from the network nodes are not alerts pertaining to “resource consumption
exceeding an operating limit.” Appeal Br. 14. Appellant contends that a
message sent by a network node is simply raw data and not an alert. Appeal
Br. 15. Appellant argues, “[c]ommunicating raw data does not equate to
‘out-of-band processes’ that monitor and alert an external entity of resource
consumption exceeding an operating limit.” Appeal Br. 15. Appellant
further argues that the messages cannot be out-of-band because “Suit must
use system resources to take raw data it receives and compute possible
meaning of the data against thresholds.” Appeal Br. 15. Furthermore,
Appellant contends that the thresholds are calculated after the message is
sent, and thus the message cannot be an alert. Appeal Br. 15.
In the Answer, the Examiner finds, citing paragraph 20 of Appellant’s
Specification, that Suit teaches “out-of-band processes” because the
monitoring and messaging process performed by Suit’s data collection agent
is “a separate process (out-of-band) from the network node’s role of
processing within its business process application service groups (BASGs).”
Ans. 2. Again citing paragraph 20 of Appellant’s Specification, the
Examiner further finds that the term “out-of-band” in the limitations
“assessing activities out-of-band” and “out-of-band processes” means that
resources of the central processing unit running the applications are not
consumed. Ans. 2, 3. In this light, the Examiner finds that Kutch discloses
a controller that monitors a processor of a network server and does not
consume resources of the processor of the network server. Ans. 2, 3. In
addition, the Examiner determines that Appellant has not specifically
addressed the Examiner’s findings with respect to Kutch. Ans. 3.
Moreover, the Examiner finds that Suit teaches “alerting” because Suit’s
Appeal 2018-007437
Application 14/137,921
5
data collection agents send state information messages when certain events
have occurred such as “when CPU utilization (resource consumption) is
exceeding a specified percentage (exceeds an operating limit), thereby
alerting the application server and administer of said event.” Ans. 4, 5.
Furthermore, the Examiner finds that Claim 1 is written so broadly, such
that, it does not matter whether Suit calculates the operating limit (i.e.,
thresholds) at the network node or at the application server. Ans. 5. The
Examiner further finds that “even if Suit is teaching that all monitoring data
is sent to the server that would still include the subset of data that exceeds an
operating limit.” Ans. 5.
In the Reply Brief, Appellant argues that paragraph 20 of Appellant’s
Specification is directed towards two different embodiments and that the
Examiner conflates these embodiments in the Answer. Reply Br. 4. With
respect to Kutch, Appellant newly argues, “Kutch does not include the out-
of-band processes of ‘monitoring and alerting an external entity of resource
consumption exceeding an operating limit.’” Reply Br. 5. Appellant
additionally newly argues that, “the claim specifically requires ‘assessing
activities’ performed by the application monitoring services module are done
‘out-of-band’ and include both ‘monitoring and alerting an external entity of
resource consumption exceeding an operating limit.’” Reply Br. 6.
Moreover, Appellant argues that since the device receiving the message (i.e.,
the external entity) is calculating the thresholds, the device receiving the
message cannot be “‘alerted for when ‘resource consumption’” exceeds
operating limits. Reply Br. 7.
We are not persuaded by Appellant’s arguments and adopt the
Examiner’s findings. We are bound by the controlling guidance of our
reviewing court: “[i]t is the claims that measure the invention.” See SRI Int’l
Appeal 2018-007437
Application 14/137,921
6
v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en
banc) (citations omitted); In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir.
1998) (citations omitted) (“[T]he name of the game is the claim.”) (emphasis
added). We note that claim terms are to be given their broadest reasonable
interpretation, as understood by those of ordinary skill in the art and taking
into account whatever enlightenment may be had from the Specification. In
re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Furthermore, our
reviewing court has held “[t]hough understanding the claim language may
be aided by the explanations contained in the written description, it is
important not to import into a claim limitations that are not a part of the
claim.” SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed.
Cir. 2004). Additionally, our reviewing court has also “cautioned against
reading limitations into a claim from the preferred embodiment described in
the specification, even if it is the only embodiment described, absent clear
disclaimer in the specification.” In re Am. Acad. of Sci. Tech Ctr., 367 F.3d
1359, 1369 (Fed. Cir. 2004).
Claim 1 requires, inter alia, “wherein assessing activities out-of-band
is performed on the management processor unit and does not consume
resources of the application central processing unit” and “wherein out-of-
band processes include monitoring and alerting an external entity of resource
consumption exceeding an operating limit.” Thus, the quoted portions of
Claim 1 require a first limitation pertaining to activity assessment and a
second limitation pertaining to out-of-band processes. Appellant has not
identified any elements within Claim 1 that link those claim limitations. In
other words, Appellant has not identified where in Claim 1 the out-of-band
processes are the same as or correspond to assessing activities out-of-band or
that the assessment activities include the monitoring and alerting of the out-
Appeal 2018-007437
Application 14/137,921
7
of-band process. Thus, we find that the broadest reasonable interpretation of
Claim 1 does not require the out-of-band processes to also be performed on
the management processor unit that performs the assessment activities.
Instead, we agree with the Examiner that the broadest reasonable
interpretation of “out-of-band processes” allows for Suit’s data collection
agent to be deployed on the network node and to perform processes separate
from application processes of the network node.
Furthermore, Appellant has not identified any elements within
Claim 1 that define the claimed “monitoring and alerting.” In other words,
Appellant has not identified where Claim 1 requires for the application
monitoring services module on the management processor unit to alert the
external entity of events (e.g., resource consumption exceeding an operating
limit) relating to operation of the application central processing unit. Thus,
based on our review, the broadest reasonable interpretation of Claim 1 does
not require the alert or the conditions causing the alert to be predefined or
defined in any particular location or manner. Instead, we agree with the
Examiner that the broadest reasonable interpretation of monitoring and
alerting allows for determining that an operating limit of a central processing
unit has been exceeded after receiving data pertaining to utilization and
states of the central processing unit.
Therefore, we affirm the Examiner’s rejection of representative
Claim 1. Because Appellant has not set forth separate arguments for
patentability of Claims 2, 3, 6, 8–16, and 18–20, these claims fall with
representative Claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
Appeal 2018-007437
Application 14/137,921
8

DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 6, 10,
12–14, 21
103(a) Suit, Kutch 1, 2, 6, 10,
12–14, 21

3, 8, 9, 11, 15,
16, 18–20
103(a) Suit, Kutch,
Gammenthaler
3, 8, 9, 11,
15, 16, 18–
20

Overall
Outcome
1–3, 6, 8–
16, 18–21

AFFRIMED