Rateze Remote Mgmt. L.L.C.

Patent Trials and Appeals Board

Aug 11, 2021

2020002335 (P.T.A.B. Aug. 11, 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.
14/876,743 10/06/2015 Mark A. Adams 104985-0440 4309
23524 7590 08/11/2021
FOLEY & LARDNER LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
EXAMINER
LIN, SHERMAN L
ART UNIT PAPER NUMBER
2447
NOTIFICATION DATE DELIVERY MODE
08/11/2021 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):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

Ex parte MARK A. ADAMS, THOMAS EARL LUDWIG,
CHARLES WILLIAM FRANK, and NICHOLAS J. WITCHEY

Appeal 2020-002335
Application 14/876,743
Technology Center 2400

Before ROBERT E. NAPPI, JUSTIN BUSCH, and
MICHAEL T. CYGAN, Administrative Patent Judges.

CYGAN, 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 1–4, 6–12, 14–18, and 20. Appeal Br.
18–23.2 Claims 5, 13, and 19 have been cancelled. Id. at 20–23 (Claims
App.). We have jurisdiction under 35 U.S.C. § 6(b).

1 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 Rateze
Remote Mgmt. LLC. Appeal Br. 2.
2 These claims are as set forth in Appellant’s Claims Appendix. Although
Appellant does not include claims 8 and 16 at other sections of the Brief, the
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Application 14/876,743

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We AFFIRM.

CLAIMED SUBJECT MATTER
The claimed subject matter generally relates to resource command
messaging in computing. Spec. ¶ 1. Computing resources are managed by
resource devices, which are typically a distributed set of resource nodes that
appears to a consumer as a single, logical resource device. Id. ¶ 2. Scaling
such distributed resources is accompanied by increasing management
“chatter,” which negatively impacts performance. Id. ¶ 3. Increasing the
autonomy of individual resource nodes, such that information regarding
other resource nodes is not necessary, is seen as advantageous. Id. ¶ 4.
Independent claim 1 is illustrative:
1. A method, comprising:
receiving, at a resource node, a resource command from a
resource consumer, wherein the resource command includes a
command identifier with a value common to a group of related
commands;
identifying, at the resource node, an urgency parameter from
the resource command;
identifying, at the resource node, a resource node parameter
configured to identify resources available to the resource node;
detecting, at the resource node, a new command identified by
the command identifier and suspending processing of a
previous command that belongs to the same group as the new
command upon detecting the new command;

Claims Appendix is consistent with the record, and we include those claims
upon appeal. See 37 C.F.R. § 41.31(c) (stating “An appeal, when taken, is
presumed to be taken from the rejection of all claims under rejection unless
cancelled by an amendment filed by the applicant and entered by the
Office.”)
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autonomously determining, at the resource node, to discard the
resource command based at least in part on the resource node
parameter; and
if the resource command is not discarded, determining, at the
resource node, an order in which to process the resource
command based on the urgency parameter and the resource
node parameter, wherein the order is a reordering of a queue by
placing the resource command at an appropriate position in the
queue.
Appeal Br. 19 (Claims App.). Independent claims 9 and 17 recite,
respectively, an article of manufacture and a resource node having
limitations similar to that of claim 1. Id. at 20, 22. Dependent claims 2–4,
6–8, 10–12, 14–16, 18 and 20 each incorporate the limitations of their
respective independent claims. Id. at 19–23.
REFERENCES
Name Reference Date
Cherkasova et
al.
(“Cherkasova”)
US 6,154,769 Nov. 28, 2000
Wolrich et al.
(“Wolrich”)
US 6,532,509 B1 Mar. 11, 2003
Gillett et al.
(“Gillett”)
US 2003/0097443 A1 May 22, 2003
Himmel et al.
(“Himmel”)
US 6,725,252 B1 Apr. 20, 2004
Hinshaw US 2004/0205110 A1 Oct. 14, 2004

REJECTIONS
Claims 1, 9, and 17 are rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Cherkasova, Gillett, and Himmel.
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Claims 2–4, 7, 8, 10–12, 15, 16, and 18 are rejected under 35 U.S.C.
§ 103(a) as being obvious over the combination of Cherkasova, Gillett,
Himmel, and Hinshaw.
Claims 6, 14, and 20 are rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Cherkasova, Gillett, Himmel, and Wolrich.

OPINION
Appellant’s central contention of error in the Examiner’s rejection is
that none of the references, individually or in combination, teach or suggest
(1) suspending processing of a previous command, (2) identifying a resource
node parameter, or (3) discarding a resource command based at least in part
on the resource node parameter. See Appeal Br. 10–13; Reply Br. 4–7.
Appellant further argues that the rationale for combining the references is
conclusory and unsupported by the references. Appeal Br. 15. Lastly,
Appellant argues that the Examiner’s Answer improperly sets forth new
grounds of rejection. Reply Br. 4–6. We begin with Appellant’s first
contention.
1. suspending processing of a previous command
Claim 1 recites, inter alia, “suspending processing of a previous
command that belongs to the same group as the new command upon
detecting the new command.” Appeal Br. 19 (Claims App.).
In the Final Action, the Examiner finds Cherkasova to teach a “cost
function for determining [the] position of request in a queue, the cost
function [being] based on resources at the processor and a parameter
specified in the request.” Final Act. 3 (citing Cherkasova 2:15–16; 3:1–18).
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The Examiner further finds that Cherkasova does not teach “a command
identifier to identify a prior request to suspend,” relying upon Himmel for
that limitation, and also finding Himmel to provide teachings relevant to the
“suspending” limitation. Id. at 4–5. In the Answer, the Examiner further
explains that Cherkasova teaches “reordering of a series of requests as a new
request is received and evaluated for placement in a queue for fulfillment
and therefore suspends temporarily a previous request.” Ans. 12–13.
Appellant argues that Himmel teaches canceling a request, not
suspending a request. Appeal Br. 13. Appellant argues that suspending
“means temporarily preventing from continuing or being in force or effect.”
Id. Appellant further argues, “Cherkasova fails to detect a new command
identified by a command identifier” and “fails to suspend processing of a
previous command that belongs to the same group as the new command.”
Reply Br. 5.
We are not persuaded of error in the Examiner’s rejection. In the
Final Action, the Examiner relied upon Cherkasova for determining the
position of a request in the queue, and on Himmel for acting on (canceling) a
prior request based on a command identifier that was identified for a prior
command. Final Act. 4–5. The Examiner’s Answer further explains that
Cherkasova’s determining the position of a request in a queue involves
reordering a series of requests, thus suspending temporarily a previous
request. We agree with the Examiner’s findings, noting that Cherkasova
describes prior requests being delayed, but not indefinitely delayed, by the
use of a priority value that accounts for both the cost of resources to be used
by a request and the time that particular request has spent in the queue.
Cherkasova 3:9–40. Cherkasova’s reordering of a queue thus involves
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temporarily preventing a prior, resource-intensive request from taking effect,
consistent with Appellant’s explanation of “suspending” as claimed.
Further, the Examiner relies upon the combination of Himmel
(command identifier and action on a prior command) and Cherkasova
(reordering a queue including suspending a previous request). The test for
obviousness is “what the combined teachings of the references would have
suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413,
425 (CCPA 1981). In Appellant’s argument that the combination of
references does not teach “suspending processing of a previous command
that belongs to the same group as the new command upon detecting the new
command,” Appellant has argued against the individual teachings only.
Appellant argues that Himmel does not suspend a prior command and that
Cherkasova does not use a command identifier or suspend a previous
command.3 Consequently, Appellant has not persuasively explained how
the combination of Cherkasova and Himmel fails to teach the limitation at
issue.
2. identifying a resource node parameter
We next turn to Appellant’s second contention, that the combined
references fail to teach identifying a resource node parameter.
Claim 1 recites, inter alia, “identifying, at the resource node, a
resource node parameter configured to identify resources available to the
resource node.” Appeal Br. 19 (Claims App.).

3 Appellant separately argues the propriety of the combination, addressed
infra at 10–12.
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In the Final Action, the Examiner finds Cherkasova to teach a “cost
function for determining position of request in a queue, the cost function
[being] based on resources at the processor and a parameter specified in the
request.” Final Act. 3 (citing Cherkasova 2:15–16; 3:1–18). The Examiner
finds Gillett to teach the “use of availability of resource nodes [to] determine
availability of capacity to service a request.” Id. at 3–4 (citing Gillett ¶ 59).
In the Answer, the Examiner explains that Cherkasova describes a priority
value calculation, based on resource node parameters, that determines an
order of processing resource commands. Ans. 11. The Examiner further
explains that the priority calculation includes a clock parameter, a tuning
parameter, and a cost function. Id. The Examiner characterizes the clock
parameter as being incremented with each successive request such that the
node will not indefinitely postpone a request. Id. The Examiner states that
both the clock parameter and tuning parameter are associated with the node
filling the requests. Id.
In the Appeal Brief, Appellant argued that the Examiner did not point
to any teaching of Cherkasova as identifying a resource node parameter, and
therefore, erred in finding Cherkasova to teach another limitation of claim 1,
“determining, at the resource node, an order in which to process the resource
command based on the urgency parameter and the resource node parameter.”
Applicant reasoned that if Cherkasova was not shown to teach a resource
node parameter, Cherkasova could not be shown to teach a determination
based on that same resource node parameter.
In the Reply Brief, Appellant argues that the Examiner newly presents
Cherkasova as teaching a resource node parameter. Reply Br. 6. Appellant
argues that the claim specifically defines resource parameters as parameters
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identifying resources available to the resource node. Id. Appellant argues
that Cherkasova’s clock and tuning parameters do not identify resources
available to the resource node. Id. For that reason, Appellant argues that
Cherkasova’s clock and tuning parameters do not teach the claimed resource
node parameter.
This issue turns on the scope of the claim term “resource node
parameter configured to identify resources available to the resource node.”
Appellant points to paragraph 18 of the Specification as providing support
for that term. Appeal Br. 6. Paragraph 18 describes the management of
resources available at the resource nodes in the following manner:
Because resource nodes are autonomous and service requests
from multiple resource consumers, the resource nodes fold
information regarding their state, history, capabilities, or other
relevant information together with their interpretation of the
urgency or importance information to decide how or when to
process the command.
Appellant further directs attention to paragraphs 81 and 82 of the
Specification to provide support for the processing of a resource command
based on the urgency parameter and the resource node parameter. Appeal
Br. 6. Paragraph 81 describes that the ordering of command processing is
“determined by a resource node.” Paragraph 82 describes the ordering of
command processing to be “determined based upon the resource node
information, command urgency or importance.”
We interpret the term in accordance with its broadest reasonable
interpretation consistent with the Specification. In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Based upon a review of
the usage of the term in the Specification, including those areas highlighted
by Appellant, as viewed by one having ordinary skill in the art, we are not
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persuaded that Cherkasova’s clock parameter, tuning parameter, and cost
function fail to teach or suggest the claimed “resource node parameter
configured to identify resources available to the resource node.”
According to the Specification, the resource node relies upon
“information regarding their state, history, capabilities, or other relevant
information” to process commands. Spec. ¶ 18. As explained by the
Examiner, Cherkasova’s clock parameter increments with successive
requests, reflecting a history of the requests received by the resource node.
Ans. 11; Cherkasova 3:23–24. Cherkasova further describes that a scan of
the priority queue may be performed to keep the clock parameter below
some maximum, indicating that the clock parameter reflects an assessment
of the state or capabilities of the resource node. Cherkasova 3:41–47.
Further, both the clock parameter and the tuning parameter (which “controls
the balance between the time of arrival of the request and the latency
minimization”) are “relevant information” to processing commands.
Consequently, we agree with the Examiner that Cherkasova teaches or
suggests the claimed “resource node parameter configured to identify
resources available to the resource node” under its broadest reasonable
interpretation consistent with the Specification as understood by one having
ordinary skill in the art.
3. discarding a resource command based at least in part on the
resource node parameter.
We next turn to Appellant’s third contention, that the combined
references fail to teach a resource node determining to discard a resource
command based at least in part on the resource node parameter.
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Claim 1 recites, inter alia, “autonomously determining, at the resource
node, to discard the resource command based at least in part on the resource
node parameter.” Appeal Br. 19 (Claims App.).
In the Final Action, the Examiner finds Gillett to teach a “discard
request based on a node parameter as taught by reject[ing] or redirect[ing] a
request if there is insufficient capacity for the server to process the request.”
Final Act. 4 (citing Gillett ¶ 59). In the Answer, the Examiner explains,
Gillet, in sections 0059-0060, discloses a service level manager
component of an edge server that monitors and estimates
sufficient capacity to handle requests. If capacity is insufficient,
the service level manager of the cluster/server redirects the
request to another cluster/server.
Ans. 12.
Appellant argues that, although Gillet teaches that the service level
manager can reject the request, “nothing is described about how the manager
determines whether to do so.” Appeal Br. 12. Moreover, Appellant argues,
paragraph 59 “clearly does not suggest or teach the use of a resource node
parameter or any other parameter.” Id.; Reply Br. 7.
We are not persuaded of error. Gillett teaches a server (resource
node) that monitors its capacity to handle requests. Gillett ¶ 59. As
discussed above, the claimed resource node parameter includes “information
regarding their state, history, capabilities, or other relevant information.”
We agree with the Examiner that the capacity of the node to handle requests
meets this definition, as it represents the “capabilities[] or other relevant
information” of the node’s command processing ability.
4. Alleged impropriety of combination of references
We turn next to Appellant’s contention that the combination of
references is improper. Appellant argues that Cherkasova is purposed to
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balancing resource allocations between large and small jobs using queue
length and current priority as parameters. Appeal Br. 14. Appellant argues
that Himmel is for a different purpose, to prevent a single user from
dominating the resources by submitting too many requests, which Himmel
achieves by identifying the user id of a new request and cancelling the new
request if a prior request from that user id is already being processed. Id. at
14–15. Appellant argues that the Examiner’s rationale for combining the
references, to reduce costs of cpu (computer processor unit) time and
memory when dealing with multiple requests of the same type, is flawed
because it would render both references inoperable for their intended
purposes. Id. at 15. Appellant states, “if a proposed modification would
render the prior art invention being modified unsatisfactory for its
intended purpose, then there is no suggestion or motivation to make the
proposed modification.” Appeal Br. 17 (citing In re Gordon, 733 F.2d 900
(Fed. Cir. 1984)). Appellant argues that the addition of Himmel’s teachings
to Cherkasova would “frustrate Cherkasova’s purpose of not constantly
moving large requests to the back of the queue,” and, vice versa, adding
Cherkasova’s teachings to Himmel’s would frustrate Himmel’s purpose of
“not allowing a single user to hog resources.” Id. at 16.
We do not find this argument persuasive. The test for obviousness is
“not whether the features of a secondary reference may be bodily
incorporated into the structure of the primary reference,” but instead “what
the combined teachings of the references would have suggested to those of
ordinary skill in the art.” Keller, 642 F.2d at 425. The Examiner has
determined that restrictions against same-user monopolization of resources
and prevention of indefinite suspension of large requests both provide
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advantages to handling of resources at a node, and that one having ordinary
skill in the art would recognize the advantage of combining both in a single
system or method. Appellant has not provided persuasive argument to show
error in this determination.
With respect to alleged inoperability, In re Gordon addressed an
obviousness rejection which required the structure of a prior art fluid
filtering device to be turned upside down and have the inlet/outlet
connections altered, in order to make obvious the claimed invention.
Gordon, 733 F.2d at 902. The court noted that because the prior art fluid
filtering device operated with the assistance of gravity, turning the device
upside down would render the device inoperable as a filter. Id. Since the
rejection provided no motivation for turning the device upside down, except
that it could be done to meet the claimed structure, the court found that it
had not been shown to be obvious. Id. Unlike the situation presented in
Gordon, Appellant has not shown that the teachings or suggestions of either
Cherkasova or Himmel would be inoperable if altered as in the Examiner’s
proposed combination. At best, Appellant argues that such alteration would
result in a combination having both features, albeit somewhat less effective
at user handling than Himmel alone, and somewhat less effective at large
request handling than Cherkasova alone. However, Appellant has not
alleged that the combination would be inoperable, in the sense that Gordon’s
gravity-operated filter would perform no filtering function if inverted, for
either function. Moreover, unlike Gordon, the Examiner has presented
unrebutted rationales for combining the individual teachings or suggestions
of Cherkasova, Gillet, and Himmel. Accordingly, we do not find
Appellant’s arguments persuasive to show error.
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5. Alleged new grounds of rejection in the Answer
Additionally, Appellant argues that the Examiner’s reliance on
Cherkasova for teaching “suspending” and a “resource node parameter”
amounts to new grounds of rejection not presented in the Final Action.
Reply Br. 4–6. However, such an argument is not properly raised in a Reply
Brief. Instead, USPTO rules clearly require that:
[a]ny request to seek review of the primary examiner’s failure
to designate a rejection as a new ground of rejection in an
examiner’s answer must be by way of a petition to the Director
under § 1.181 of this title filed within two months from the
entry of the examiner’s answer and before he filing of any
reply brief. Failure of appellant to timely file such a petition
will constitute a waiver of any arguments that a rejection must
be designated as a new ground of rejection.
37 C.F.R. § 41.40(a). Because Appellant did not timely file such a petition,
Appellant’s arguments alleging new grounds of rejection are waived.
6. Conclusions
For the foregoing reasons, we are not persuaded the Examiner erred in
rejecting claim 1 as obvious over the combination of Cherkasova, Gillett,
and Himmel. For the same reason, we determine that claims 9 and 17,
which were rejected under the same grounds and not argued separately, are
also obvious. Thus, we sustain the Examiner’s rejection of claims 1, 9, and
17.
Claims 2–4, 7, 8, 10–12, 15, 16, and 18 are rejected under the same
base combination of Cherkasova, Gillett, and Himmel, further in view of
Hinshaw. Claims 6, 14, and 20 are rejected under a combination of
Cherkasova, Gillett, Himmel, and Wolrich. Appellant has not argued any of
these claims separately from claim 1. Accordingly, we affirm the
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Examiner’s rejection of these claims for the same reasons as expressed in
affirming the Examiner’s rejection of claim 1.
CONCLUSION
For the above-described reasons, we affirm the Examiner’s
obviousness rejection of claims 1–4, 6–12, 15–18, and 20 over the applied
art, as summarized below.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1, 9, 17 103(a) Cherkasova, Gillett,
Himmel
1, 9, 17
2–4, 7, 8,
10–12,
15, 16, 18
103(a) Cherkasova, Gillett,
Himmel, Hinshaw
2–4, 7, 8,
10–12, 15,
16, 18

6, 14, 20 103(a) Cherkasova, Gillett,
Himmel, Wolrich
6, 14, 20
Overall
Outcome
1–4, 6–12,
14–18, 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) (2019).

AFFIRMED