Red Hat, Inc.

Patent Trials and Appeals Board

Sep 2, 2021

2020003144 (P.T.A.B. Sep. 2, 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.
15/879,818 01/25/2018 Kabir Khan 1145-066/20171216US 2845
137131 7590 09/02/2021
Red Hat, Inc and Withrow & Terranova, PLLC
106 Pinedale Springs Way
Cary, NC 27511
EXAMINER
LUU, BINH K
ART UNIT PAPER NUMBER
2191
NOTIFICATION DATE DELIVERY MODE
09/02/2021 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):
patents@wt-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte KABIR KHAN
________________

Appeal 2020-003144
Application 15/879,818
Technology Center 2100

________________

Before RICHARD M. LEBOVITZ, JASON J. CHUNG, and
SCOTT E. BAIN, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.
INVENTION
The invention relates to providing mechanisms for reducing resource
consumption by hierarchically configured applications deployed in cloud-
based environments. Spec. ¶ 1. Claim 1 is illustrative of the invention and
is reproduced below:

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, Red Hat, Inc. is the real party in
interest. Appeal Br. 3.
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1. A computing system, comprising:
a first computing device comprising a first memory and a
first processor device communicatively coupled to the first
memory; and
a second computing device comprising a second memory
and a second processor device communicatively coupled to the
second memory;
the first computing device to:
launch a hierarchically configured application within a
first container of a container application platform according to
one or more resource descriptions for the hierarchically
configured application;
determine a state of each service of one or more services
initiated by the hierarchically configured application; and
generate one or more serialized data structures
representing the state of each service of the one or more services;
and
the second computing device to subsequently launch the
hierarchically configured application within a second container
of the container application platform based on the one or more
serialized data structures.
Appeal Br. 16 (Claims Appendix) (emphasis added).

REJECTIONS
The Examiner rejects claims 1, 2, 8, 11, 12, 18, and 20 under
35 U.S.C. § 103 as being unpatentable over the combination of Reeves (US
9,274,811 B1; issued Mar. 1, 2016) and Tuatini (US 2002/0035645 A1;
published Mar. 21, 2002). Ans. 4–10; Final Act. 2–8.
The Examiner rejects claims 3–7 and 13–17 under 35 U.S.C. § 103 as
being unpatentable over the combination of Reeves, Tuatini, and Wipfel (US
2011/0126207 A1; published May 26, 2011). Ans. 10–16; Final Act. 8–14.
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The Examiner rejects claim 9 under 35 U.S.C. § 103 as being
unpatentable over the combination of Reeves, Tuatini, and Chouhan (US
2015/0378691 A1; published Dec. 31, 2015). Ans. 16–17; Final Act. 14–15.
The Examiner rejects claim 10 under 35 U.S.C. § 103 as being
unpatentable over the combination of Reeves, Tuatini, and Liggitt (US
2017/0249177 A1; published Aug. 31, 2017). Ans. 17; Final Act. 15–16.
The Examiner rejects claim 19 under 35 U.S.C. § 103 as being
unpatentable over the combination of Reeves, Tuatini, Chouhan, and Liggitt.
Ans. 18; Final Act. 16.
ANALYSIS
I. Claims 1, 3–7, 9–11, 13–17, 19, and 20 Rejected Under 35 U.S.C.
§ 103
The Examiner finds Reeves teaches querying a first server program
for a first set of configuration information and identifying sets of
environment independent and dependent attributes from the configuration
information, which the Examiner maps to the limitation “determine a state of
each service of one or more services initiated by the hierarchically
configured application” recited in claim 1. Ans. 5, 21 (citing Reeves, 3:24–
32); Final Act. 3 (citing Reeves, 3:24–32).
Moreover, the Examiner finds Tuatini teaches that an application
program contains application-wide configuration and state information 1200
that provide access to application configuration object 1202. Ans. 7, 21–22
(citing Tuatini ¶ 57); Final Act. 5 (citing Tuatini ¶ 57). The Examiner also
finds that Tuatini’s application configuration object provides access to the
configuration information that specify initialization parameters 1203 of the
application program. Ans. 7, 21–22 (citing Tuatini ¶ 57); Final Act. 5
(citing Tuatini ¶ 57). The Examiner finds that Tuatini teaches accessing
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state information via application context object 1201, which the Examiner
maps to the limitation “determine a state of each service of one or more
services initiated by the hierarchically configured application” recited in
claim 1. Ans. 7, 21–22 (citing Tuatini ¶ 57); Final Act. 5 (citing Tuatini
¶ 57).
Appellant argues the limitation “service” comprises executable code
that “provide[s] the actual functionality required by the hierarchically
configured application” and is associated with a “state” after being initiated
by the hierarchically configured application, but Reeves merely teaches
obtaining configuration information and identifying sets of environment
independent and dependent attributes from the configuration information
existing on a server program prior to application deployment and then
storing those values for the environment independent attributes for use
during application deployment. Appeal Br. 11 (emphasis omitted) (citing
Spec. ¶¶ 26–27); Reply Br. 2. In addition, Appellant argues Tuatini fails to
teach the disputed limitation because it is merely illustrates a state
architecture for an application program. Appeal Br. 11–12; Reply Br. 2–3.
We disagree with Appellant.
At the outset, paragraphs 26 and 27 of the Specification do not
provide a specific definition for “service.” Spec. ¶¶ 26–27. Instead,
paragraphs 26 and 27 of the Specification discuss “service” with words and
phrases such as “examples,” “may,” and “non-limiting examples.” Id. Also,
Appellant’s argument that “service” comprises executable code that
“provide[s] the actual functionality required by the hierarchically configured
application” and is associated with a “state” after being initiated by the
hierarchically configured application is not recited in the claim. Appeal Br.
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11 (citing Spec. ¶¶ 26–27); Reply Br. 2. “[A]ppellant’s arguments fail from
the outset because . . . they are not based on limitations appearing in the
claims.” See In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Appellants are
attempting to import limitations from the Specification in the claims. Ans.
4. “[A] particular embodiment appearing in the written description may not
be read into a claim when the claim language is broader than the
embodiment.” SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870,
875 (Fed. Cir. 2004). “[L]imitations are not to be read into the claims from
the specification.” In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
Reeves describes querying (i.e., determining) a first server program
(i.e., service) for a first set of configuration information and identifying sets
of environment independent and dependent attributes (i.e., each attribute
teaches a “state”) from the configuration information (i.e., hierarchically
configured application that initiates a service), which teaches the limitation
“determine a state of each service of one or more services initiated by the
hierarchically configured application” recited in claim 1. Ans. 5, 21 (citing
Reeves, 3:24–32); Final Act. 3 (citing Reeves, 3:24–32).
Furthermore, Tuatini teaches an application program (i.e., service)
contains application-wide configuration and state information 1200 that
provide access to application configuration object 1202. Ans. 7, 21–22
(citing Tuatini ¶ 57); Final Act. 5 (citing Tuatini ¶ 57). Tuatini teaches
application configuration object 1202 (i.e., hierarchically configured
applications) provides access to the configuration information that specifies
initialization parameters 1203 of the application program. Ans. 7, 21–22
(citing Tuatini ¶ 57); Final Act. 5 (citing Tuatini ¶ 57). In addition, Tuatini
describes accessing state information (i.e., determining a state) via
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application context object 1201, which teaches the limitation “determine a
state of each service of one or more services initiated by the hierarchically
configured application” recited in claim 1. Ans. 7, 21–22 (citing Tuatini,
Fig. 12, ¶ 57); Final Act. 5 (citing Tuatini, Fig. 12, ¶ 57).
Appellant does not argue claims 1, 3–7, 9–11, 13–17, 19, and 20
separately with particularity. Appeal Br. 10–14. These claims therefore fall
with claim 1. 37 C.F.R. § 41.37(c)(1)(iv). Accordingly, we sustain the
Examiner’s rejection of: (1) independent claims 1, 11, and 20; and
(2) dependent claims 3–7, 9, 10, 13–17, and 19 under 35 U.S.C. § 103.

II. Claims 2 and 12 Rejected Under 35 U.S.C. § 103
The Examiner finds Reeves teaches source environment 102 and
target environment 111 and Tuatini teaches application programs execute in
a container environment and various containers communicate with each
other through container adapters 201, which the Examiner maps to the
limitation “the first container comprises a provisioning container of the
container application platform; and the second container comprises an
execution container of the container application platform” recited in claim 2.
Ans. 8, 23–24 (citing Reeves, Fig. 2; Tuatini ¶ 47; Spec. ¶¶ 23–24); Final
Act. 6 (citing Reeves, Fig. 2).
Appellant argues the claimed “container” is initiated within a
“container application platform” such as Red Hat’s OpenShift, and
“represents an isolated system that makes a predefined set of resources . . .
available for use by applications executing therein.” Appeal Br. 12–13
(citing Spec. ¶¶ 23–24); Reply Br. 3–4 (citing Spec. ¶¶ 23–24). We disagree
with Appellant.
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As an initial matter, paragraphs 23 and 24 of the Specification do not
provide a specific definition for “container.” Spec. ¶¶ 23–24. Instead,
paragraphs 23 and 24 of the Specification discuss “container” with words
such as “examples,” “may,” and “example.” Id. Also, Appellant’s argument
that “container” is initiated within a “container application platform” such as
Red Hat’s OpenShift, and “represents an isolated system that makes a
predefined set of resources . . . available for use by applications executing
therein” is not recited in the claim. Appeal Br. 12–13 (citing Spec. ¶¶ 23–
24); Reply Br. 3–4 (citing Spec. ¶¶ 23–24). “[A]ppellant’s arguments fail
from the outset because . . . they are not based on limitations appearing in
the claims.” See In re Self, 671 F.2d at 1348. Limitations from the
Specification are not ordinarily read into the claims, unless there is clear
reason to do so. SuperGuide Corp., 358 F.3d at 875; Van Geuns, 988 F.2d at
1184.
Reeves teaches source environment 102 (i.e., provisioning container)
and target environment 111 (i.e., execution container). Ans. 8, 23–24 (citing
Reeves, Fig. 2; Tuatini ¶ 47; Spec. ¶¶ 23–24); Final Act. 6 (citing Reeves,
Fig. 2). And Tuatini teaches application programs execute in a container
environment (i.e., container comprises a type of container of a container
application platform) and various containers communicate with each other
through container adapters 201. Ans. 8, 23–24 (citing Reeves, Fig. 2;
Tuatini ¶ 47; Spec. ¶¶ 23–24); Final Act. 6 (citing Reeves, Fig. 2). As a
result, the combination of Reeves and Tuatini teaches the limitation “the first
container comprises a provisioning container of the container application
platform; and the second container comprises an execution container of the
container application platform” recited in claim 2. Ans. 8, 23–24 (citing
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Reeves, Fig. 2; Tuatini ¶ 47; Spec. ¶¶ 23–24); Final Act. 6 (citing Reeves,
Fig. 2). Moreover, Appellant fails to provide an adequate explanation as to
why the Examiner erred in finding that the claim 2 limitations are met by the
combination of Reeves and Tuatini.
In any event, we note that the Federal Circuit has held that the Board
may adopt a claim construction of a disputed term that neither party
proposes without running afoul of the APA. See, e.g., Praxair Distrib., Inc.
v. Mallinckrodt Hosp. Prods. IP Ltd., 890 F.3d 1024, 1034 (Fed. Cir. 2018)
(rejecting argument that Board violated patent owner’s “procedural rights by
adopting a claim construction that neither party proposed”); WesternGeco
LLC v. ION Geophysical Corp., 889 F.3d 1308, 1328 (Fed. Cir. 2018) (“The
Board is not bound to adopt either party’s preferred articulated construction
of a disputed claim term.”). Parties are well aware that the Board may stray
from disputed, proposed constructions. See WesternGeco, 889 F.3d at 1328
(“Having put it at issue, WesternGeco was well aware that the Board could
alter its construction in the final written decision.”).
Additionally, we note that the limitations “provisioning” and
“execution” are non-functional descriptive material because the claim does
not recite a function for either term. That is, the informational content of
non-functional descriptive material is not entitled to weight in the
patentability analysis. See Ex parte Nehls, 88 USPQ2d 1883, 1887–90
(BPAI 2008) (precedential); Ex parte Curry, 84 USPQ2d 1272 (BPAI 2005)
(informative) (Federal Circuit Appeal No. 2006-1003), aff’d, Rule 36 (June
12, 2006)); Ex parte Mathias, 84 USPQ2d 1276 (BPAI 2005) (informative),
aff’d, 191 F. App’x 959 (Fed. Cir. 2006); see also Spec. ¶¶ 22–23
(discussing provisioning and execution in the context of an “example”). As
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a result, we need not decide whether the combination of Reeves and Tuatini
teaches the limitations “provisioning” and “execution.”
Appellant does not argue claim 12 separately with particularity.
Appeal Br. 10–14. Accordingly, we sustain the Examiner’s rejection of
claims 2 and 12 under 35 U.S.C. § 103.
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv).

III. Claims 8 and 18 Rejected Under 35 U.S.C. § 103
Claim 8 depends from claim 1 and further recites:
The computing system of claim 1, wherein to
subsequently launch the hierarchically
configured application within the second container of the
container application platform based on
the one or more serialized data structures is to:
deserialize each instance of each service of the one or
more services from the one or more
serialized data structures;
determine, based on the one or more serialized data
structures, whether one or more
dependencies exist for each instance of each service of
the one or more services;
responsive to determining that one or more dependencies
exist for each instance of each
service of the one or more services, set the one or more
dependencies;
install the hierarchically configured application into the
second container of the container
application platform; and
execute the hierarchically configured application within
the second container.
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The Examiner finds Reeves teaches identifying sets of environment
independent and dependent attributes and Tuatini teaches deserializing
messages and returning a Java object representing the message such that the
method performs any processing necessary, which the Examiner maps to the
limitation
deserializ[ing] each instance of each service of the one or more
services from the one or more serialized data structures;
determin[ing], based on the one or more serialized data
structures, whether one or more dependencies exist for each
instance of each service of the one or more services; [and]
responsive to determining that one or more dependencies exist
for each instance of each service of the one or more services,
set[ting] the one or more dependencies
recited in claim 8. Ans. 8–10; 25–26 (citing Reeves, 3:24–42, 14:47–60;
Tuatini ¶ 83); Final Act. 6–8 (citing Reeves, 14:47–60; Tuatini ¶ 83).
Appellant argues Reeves merely teaches sets of environment
independent and dependent attributes and Tuatini merely teaches
deserializing a message and returning a Java object representing the
message, but the combination fails to teach the limitation from the preceding
paragraph. Appeal Br. 13; Reply Br. 5. We agree with Appellant.
The cited portions of Reeves teach identifying sets of environment
independent and dependent attributes and the cited portions of Tuatini teach
deserializing messages and returning a Java object representing the message
such that the method performs any processing necessary. Ans. 8–10; 25–26
(citing Reeves, 3:24–42, 14:47–60; Tuatini ¶ 83); Final Act. 6–8 (citing
Reeves, 14:47–60; Tuatini ¶ 83). However, claim 8 requires a nexus (i.e.,
the “based on the one or more serialized data structures” limitation)
between: (1) the limitation “determin[ing] . . . whether one or more
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dependencies exist for each instance of each service of the one or more
services” and (2) a preceding condition of “deserializ[ing] each instance of
each service of the one or more services from the one or more serialized data
structures.”
Stated another way, the cited portions of Reeves and Tuatini fail to
teach that a preceding condition of “deserializ[ing] each instance of each
service of the one or more services from the one or more serialized data
structures” triggers the result of “determin[ing] . . . whether one or more
dependencies exist for each instance of each service of the one or more
services” as required by claim 8. Nor has the Examiner adequately
explained how this “based on the one or more serialized data structures”
limitation is met. See Ans. 8–10; 25–26 (lacking a sufficient explanation as
to the limitation “based on the one or more serialized data structures” recited
in claim 8); Final Act. 6–8 (lacking a sufficient explanation as to the
limitation “based on the one or more serialized data structures” recited in
claim 8).
Therefore, Appellant persuades us of error with respect to claim 8,
and claim 18 which has similar language. Accordingly, we reverse the
Examiner’s rejection of claims 8 and 18 under 35 U.S.C. § 103.

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CONCLUSION

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. § 1.136(a)(1)(iv).

AFFIRMED IN PART

Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 8, 11,
12, 18, 20
103 Reeves, Tuatini 1, 2, 11, 12,
20
8, 18
3–7, 13–17 103 Reeves, Tuatini,
Wipfel
3–7, 13–17
9 103 Reeves, Tuatini,
Chouhan
9
10 103 Reeves, Tuatini,
Liggitt
10
19 103 Reeves, Tuatini,
Chouhan, Liggitt
19
Overall
Outcome
1–7, 9–17,
19, 20
8, 18