W.W. GRAINGER, INC.

Patent Trials and Appeals Board

Jun 16, 2020

2019000920 (P.T.A.B. Jun. 16, 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.
13/787,124 03/06/2013 Colin Sidi 31083.47US2 6527
34018 7590 06/16/2020
Greenberg Traurig, LLP
77 W. Wacker Drive
Suite 3100
CHICAGO, IL 60601-1732
EXAMINER
NGUYEN, ANH
ART UNIT PAPER NUMBER
2454
NOTIFICATION DATE DELIVERY MODE
06/16/2020 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):
chiipmail@gtlaw.com
clairt@gtlaw.com
jarosikg@gtlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte COLIN SIDI, STEPHEN S. HASKELL, ABHIJIT NAIK, and
DEEPAK RATHI
____________________

Appeal 2019-000920
Application 13/787,1241
Technology Center 2400
____________________

Before ALLEN R. MacDONALD, JON M. JURGOVAN, and
KEVIN C. TROCK, Administrative Patent Judges.

JURGOVAN, Administrative Patent Judge.

DECISION ON APPEAL

Appellant seeks review under 35 U.S.C. § 134(a) from a Final
Rejection of claims 1–9 and 21–23, constituting all of the claims pending in
the application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.2

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, the real party in interest is
W. W. Grainger, Inc. Appeal Br. 2.
2 Our Decision refers to the Specification (“Spec.”) filed March 6, 2013, the
Final Office Action (“Final Act.”) mailed March 8, 2018, the Appeal Brief
(“Appeal Br.”) filed June 26, 2018, the Examiner’s Answer (“Ans.”) mailed
September 21, 2018, and the Reply Brief (“Reply Br.”) filed November 14,
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CLAIMED INVENTION
The claims are directed to providing infrastructure metrics for
components of a monitored system. Spec. 21. Data for user applications
and operating systems are aggregated into transactional and non-
transactional data streams correlated on a common time scale for graphical
display to a user for further analysis. Id.
Claim 1 is independent. Claims 2–9 and 21–23 depend from claim 1.
Claim 1 is reproduced below:
1. A non-transient, computer readable media having stored
thereon instructions for providing infrastructure metrics for
components of a monitored system the instructions performing
steps comprising:
obtaining, and storing in a data repository in a user impact
data log, data indicative of individual application response times
resulting from user interactions with each one of a plurality of
applications running on a network system and data indicative of
network response times;
obtaining, and storing in a data repository in an operating
system statistics log, data indicative of operating system usage
of system resources for each operating system running the the3
plurality of applications running on a network system;
aggregating data in the user impact data log and data in the
operating system statistics log into a raw data log;
bifurcating the raw data log into at least a transactional
data stream and a non-transactional data stream;
correlating at least one of the transactional data stream and
the non-transactional data stream together with the data within
the operating system log onto a common time scale; and
using the common time scale to display the at least one of
the transactional data stream and the non-transactional data

2018.
3 The Examiner is advised to consider whether two occurrences of the word
“the” is in compliance with 35 U.S.C. § 112.
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stream that was correlated together with the data within the
operating system log on a display in a graphical format.

Appeal Br. 14 (Claims Appendix 1).

REJECTIONS
(1) Claims 1, 2, 6, and 21–23 stand rejected under 35 U.S.C. § 103
over Saghier (US 7,369,981 B1, May 6, 2008), Peles (US 2006/0029016 A1,
February 9, 2006) and Williams (US 2014/0019609 A1, January 16, 2014).
Final Act. 4–9.
(2) Claim 7 stands rejected under 35 U.S.C. § 103 based on
Saghier, Peles, Williams and Breslin (US 7,827,448 B1, November 2, 2010).
Final Act. 10.
(3) Claims 3–5, 8 and 9 stand rejected under 35 U.S.C. § 103 based
on Saghier, Peles, Williams and Jones (US 2005/0091369, April 28, 2005).
Final Act. 10–13.

ANALYSIS
§ 103 Rejections
A patent claim is unpatentable under 35 U.S.C. § 103 if the
differences between the claimed subject matter and the prior art are such that
the subject matter, as a whole, would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) any differences between the claimed subject matter and the prior art;
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(3) the level of ordinary skill in the art; and (4) where present, objective
evidence of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18
(1966).
Claim 1
Individual Application Response Times
The Examiner finds that Saghier teaches claim 1’s limitation reciting
“obtaining, and storing in a data repository in a user impact data log, data
indicative of individual application response times resulting from user
interactions with each one of a plurality of applications running on a
network system.” Appeal Br. 14 (Claims Appendix); Final Act. 5;
Saghier 2:30–32, 2:56–66, 4:66–67.
Appellant argues that Saghier does not describe this limitation of
claim 1 as follows:
Turning to the rejection, it is first respectfully submitted that the
relied upon and cited to disclosure within Saghier generally
directed to “determining correlation factors between the
performance data and the transactions data for a common time
period” and “correlation values may be calculated based on
computer performance and transactions information”
(OA, pg. 5)(emphasis added) does not expressly describe
obtaining and storing in a data repository in a user impact data
log data indicative of individual application response times
resulting from user interactions with each one of a plurality of
applications running on a network as claimed.
Appeal Br. 5.
At the outset, we note that merely quoting and emphasizing certain
claim language and asserting it is different from a prior art reference is
insufficient to constitute an argument. See 37 C.F.R. § 41.37(c)(1)(iv)
(“The arguments shall explain why the examiner erred as to each ground of
rejection contested by appellant” (emphasis added)). Furthermore, “[i]t is
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not the function of [the Board] to examine the claims in greater detail than
argued by an appellant, looking for [patentable] distinctions over the prior
art.” In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991).
Similar deficiencies are present in subsequent arguments as well.
Nonetheless, Appellant argues Saghier does not “expressly describe”
the argued claim limitation. Appeal Br. 5. In the obviousness analysis,
however, it is not necessary that the combined references “expressly
describe” the claimed invention, only that they teach or suggest it. In re
Keller, 642 F.2d 413, 425 (CCPA 1981). Appellant’s argument fails to
apply the proper standard for the obviousness analysis here and in
subsequent arguments.
To the extent Appellant’s statement could be considered an argument,
we note that Saghier explains the problem solved by its invention as follows:
In today's world, numerous computers are dispersed throughout
many networks covering a range of applications and activities.
The expectation is that these computers are always working to
provide the response time as defined in contracted service level
agreements. Unfortunately, users and application executions are
increasing at an alarming rate placing enormous burdens on
system resources. A challenge has become a battle to keep pace
with these demands by checking and maintaining computers very
often to insure that they can handle the capacity needs placed
upon them by the ever increasing number of users and demand
for executing more applications.
Saghier 1:56–67. Thus, Saghier teaches determining response time is
important to meeting response times contracted in service level agreements
in connection with executing applications.
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Saghier further teaches the following:
The system includes a computer operable to execute
applications, to operate computing hardware, [and] to generate
performance data on the applications and computing hardware.
Ans. 4; Saghier 2:52–56 (emphasis added). Thus, Saghier teaches gathering
performance data on applications. Putting these teachings together, Saghier
at least suggests performance data may include individual application
response times for each of multiple applications. Appellant fails to explain
why these Saghier disclosures do not teach, or at least suggest, the argued
claim limitation.
In any case, even if Saghier failed to teach or suggest the claimed
limitation, Peles teaches determining individual application response times
for each of multiple applications. Peles ¶¶ 3, 25.
Operating System Usage
The Examiner finds Saghier teaches claim 1’s limitation reciting
“obtaining, and storing in a data repository in an operating system statistics
log, data indicative of operating system usage of system resources for each
operating system running the plurality of applications running on a network
system.” Appeal Br. 14 (Claims Appendix); Final Act. 5; Saghier 4:44–46,
5:6–9, 6:31–34.
Appellant argues against the Examiner’s finding as follows:
It is also respectfully submitted that the relied upon and cited to
disclosure within Saghier generally directed to “computer
performance data may include a variety of functions that measure
various performance aspects of computer 310 to provide an
indication of the computer’s performance ability”
(OA, pg. 5)(emphasis added) does not expressly describe
obtaining, and storing in a data repository in an operating system
statistics log, data indicative of operating system usage of system
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resources for each operating system running the plurality of
applications running on a network system as claimed.
Appeal Br. 6.
As noted, Saghier teaches that its system “generate[s] performance
data on the applications and computing hardware.” Final Act. 5; Saghier
2:54–55. Saghier further teaches that the “[e]xemplary performance data
includes central processing unit (CPU) utilization (including multiple
processors or systems), input/ output (I/O) utilization, memory utilization,
disk-access utilization, and packet-rate utilization” (emphasis added).
Ans. 5; Saghier 4:40–44.
We further note that an “operating system” is defined as follows:
operating system n. The software that controls the allocation and
usage of hardware resources such as memory, central processing
unit (CPU) time, disk space, and peripheral devices. The
operating system is the foundation software on which
applications depend. Popular operating systems include
Windows 98, Windows NT, Mac OS, and UNIX.
Operating System, Microsoft Computer Dictionary (5th Ed. 2002), p. 378.
This definition of “operating system” shows that a person of ordinary skill in
the art would have understood that the performance data that Saghier gathers
(CPU, I/O, Memory, and disk-access utilization) pertains to the activities of
an operating system, which collectively amount to CPU usage.
Saghier 4:40–44. Furthermore, Saghier teaches CPU utilization may cover
multiple processors or systems. Id. Combining these Saghier disclosures,
we are not persuaded the Examiner erred in finding that Saghier teaches, or
at least suggests, the claimed feature of obtaining performance data for each
operating system running applications in a network system.
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Aggregating Data
The Examiner found that Peles teaches claim 1’s limitation of
“aggregating data in the user impact data log and data in the operating
system statistics log into a raw data log.” Final Act. 6; Ans. 5–6; Peles ¶¶ 3,
10, 23; see also Williams ¶¶ 78, 83.
Appellant argues against Peles as follows:
Turning now to Peles, while Peles generally describes in relied
upon and cited to paragraph 10 that stations may collect statistics
about equipment responsiveness, its CPU load and networking
load to thereby recognize failures of equipment, relied upon and
cited to paragraph 10 does not expressly describe aggregating
data, i.e., forming a whole by combining several disparate types
of data, let alone expressly describe aggregating data in a user
impact data log and data in the operating system statistics log
into a raw data log as claimed.
Appeal Br. 7.
We agree with the Examiner’s finding that Peles teaches, or at least
suggests, the claimed “aggregating” limitation. Final Act. 4, 6–7; Ans. 5–6.
Peles teaches “gathering of statistics about the application usage and the
resource activity.” Peles ¶ 23. Peles also teaches that “resources” include
“operating system resources of the server.” Peles ¶ 30. Accordingly, the
Examiner finds Peles’s “application usage” is equivalent to the claimed
“data in the user impact data log” and Peles’s “resource activity” is
equivalent to the claimed “data in the operating system statistics log.”
Ans. 5. Peles’s “application usage” and “resource activity” are logged as
collective statistics in logging servers. Peles ¶ 35. Putting these teachings
together, we agree with the Examiner’s finding that Peles teaches, or at least
suggests, the claimed limitation.
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Motivation to Combine Saghier with Peles
The Examiner finds one of ordinary skill in the art would have
combined Saghier and Peles “to clarify that the stored data includes network
response time” and because “it would have been beneficial to monitor
network response time and application response time.” Final Act. 7;
Peles ¶ 3.
Appellant argues that the Examiner used circular reasoning to modify
Saghier “to clarify the stored data include[s] a network response time”
because it “would have been beneficial to monitoring network response
time.” Appeal Br. 9. Appellant contends this is impermissible hindsight
reasoning. Id.
We do not agree with Appellant’s argument. Saghier teaches that its
system overcomes a problem in the prior art that computers in networks
must be checked and maintained very often to ensure they can provide
response times defined in service level agreements. Saghier 1:56–67. To
this end, Saghier teaches a system that can forecast computer capacity by
gathering and analyzing performance data and transaction data. Id. at code
[57], 2:28–30. Saghier further teaches the performance data may include
packet-rate utilization, which is information that relates to the transfer and
size of information. Id. at 4:40–44, 6:53–55. Peles explicitly teaches the
claimed “data indicative of network response times.” Final Act. 6; Ans. 6;
Peles ¶ 3. As both Saghier and Peles are concerned with determining
response times in computer networks, we agree with the Examiner there was
motivation to combine the references, particularly because one of ordinary
skill would have recognized that network response times may be a
significant cause of delay in addition to application response times and
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would need to be taken into account to address response times under service
level agreements. Thus, one of ordinary skill in the art would have
understood the desirability of combining Peles’s “data indicating of network
response time” with Saghier.
Motivation to Combine Saghier and Peles with Williams
The Examiner determined that one of ordinary skill in the art would
have combined Williams with “Saghier and Peles for filtering data into
transactional and non-transactional and display the data on a graphical
format.” Final Act. 7. The Examiner further determined “[i]t would have
been beneficial [to] identify that the type of network may include
transactional traffic and/or non-transactional traffic and providing the
graphical display including application components (machines, clients,
processes, etc.) and the relationships of data.” Id.; Williams ¶ 111.
Appellant argues the Examiner used circular reasoning amounting to
impermissible hindsight in concluding that it would have been obvious to
modify Saghier and Peles with Williams’ teaching of filtering data into
transactional and non-transactional data and displaying the data in graphical
format because such filtering would be beneficial. Appeal Br. 10;
Reply Br. 5.
We do not agree with Appellant’s argument. Williams teaches:
As described above, the collector application and/or module 200
generates performance data or metrics related to and/or
indicative of the health of the network. The health data
processing application and/or module 100 may be operable to
receive metric data from multiple collectors 200, as illustrated in
FIG. la. Large numbers of metrics about a distributed application
may be collected, including user-visible performance metrics
such as transactions per second and latency of transactions as
well as infrastructure metrics relating to CPU, memory, and disk
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load. To understand the health of an application, users presented
with these numerous metrics may desire to classify network
traffic types, such as transactional traffic and/or non-
transactional traffic. Additionally, metrics relevant to the health
of the application may be identified. As such, it may be
advantageous to filter network traffic that includes a mixture of
transactional and non-transactional traffic.
Williams ¶ 144. Accordingly, Williams teaches that it may be desirable to
classify network traffic types as transactional and/or non-transactional for
presentation to users in order to understand the health of an application. Id.
Thus, we agree with the Examiner that one of ordinary skill in the art would
have understood that adding Williams’ classification of network traffic as
transactional or non-transactional to the combination of Saghier and Peles
would have been beneficial to understanding the health of applications
running in the system. Final Act. 7.
Conclusion for Claim 1
To sustain a rejection on obviousness, “there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness.” KSR, 550 U.S. at 418. We conclude the Examiner provided
sufficient reasoning and underpinning to support the conclusion of
obviousness for claim 1.
Claim 3
Claim 3 depends from claim 1 and recites “an early warning system
comprising at least one process to determine when the at least one of the
transactional data stream and the non-transactional data stream and the data
within the operating system statistics log indicate at least one of a current or
future anomaly.” Appeal Br. 15 (Claims Appendix).
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The Examiner finds that the combination of Saghier, Peles, Williams
and Jones teaches the limitations of claim 3. Final Act. 10–11; Jones
¶¶ 7, 51.
Appellant argues Jones pertains to determining a warning status for
data storage devices, and thus does not expressly describe an early warning
system that determines when transactional and non-transactional data
streams indicate a current or future anomaly. Appeal Br. 12; Reply Br. 6–7.
Appellant’s argument is an attack on Jones alone without considering
its combination with Saghier, Peles, and Williams. “Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references.” In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642
F.2d 413, 425 (CCPA 1981)). Specifically, the Examiner relies on Saghier
and Peles to teach various monitored devices, including memory and disks
(i.e., data storage devices), and on Williams to teach filtering data into
transactional and non-transactional data. Final Act. 5–7; Saghier 4:40–44;
Peles ¶ 10; Williams ¶ 144. The Examiner applies Jones’ teaching of an
early warning system to indicate anomalies in Williams’ transactional data
and non-transactional data. Final Act. 10–11; Jones ¶¶ 7, 51. Thus,
Appellant’s argument against Jones alone fails to address how the Examiner
applied the references in the rejection. Accordingly, we do not find
Appellant’s argument persuasive to show Examiner error.
Claim 21
Claim 21 depends from claim 1 and recites “wherein data in the user
impact data log and data in the operating system statistics log are aggregated
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into a raw data log on an individual user basis.” Appeal Br. 16 (Claims
Appendix).
The Examiner finds that Peles teaches claim 21’s limitation.
Final Act. 8; Peles ¶¶ 3, 30.
Appellant argues that Peles “does not expressly describe data in the
user impact data log and data in the operating system statistics log being
aggregated into a raw data log on an individual user basis.” Appeal Br. 10–
11.
We do not agree with Appellant’s argument. Peles states the
following:
The response time is a combination of the network response time
and the application response time. The application debugging
switch holds multiple measurement classes. Each class defines
different sources or destinations of traffic (IP addresses and
networks) and different applications (TCP/UDP ports or content
identifiers in the requests). Collecting the response time for each
class separately allows zooming in to an application and user that
experience bad service and detect the reason for their failure.
Peles, code [57] (emphases added); see also ¶¶ 25, 35. Thus, Peles teaches
the ability to “zoom in” to classes of response times affecting an individual
user to determine the reason for experiencing bad service. Among the
classes of response time are those for Peles’s “application usage” and
“resource activity” logged as collective statistics in logging servers.
Peles ¶ 35. When both the application response time and CPU response time
contribute to a user experiencing bad service, the raw data representing these
response times is in some sense “aggregated into a raw data log on an
individual user basis.” Appellant does not explain why these Peles’
disclosures do not teach, or at least suggest, claim 21’s limitation.
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Accordingly, we do not find Appellant’s argument persuasive to show
Examiner error.
Remaining Claims
No separate arguments are presented for the remaining claims.
Accordingly, we sustain the Examiner’s rejections of these claims for the
reasons stated for the claims from which they depend. See
37 C.F.R. § 31.47(c)(1)(iv).

CONCLUSION
The Examiner’s rejections of claims 1–9 and 21–23 under 35 U.S.C.
§ 103 are affirmed.

Claims
Rejected
35 U.S.C. § References Affirmed Reversed
1, 2, 6,
21–23
103 Saghier, Peles,
Williams
1, 2, 6, 21–
23

7 103 Saghier, Peles,
Williams, Breslin
7
3–5, 8, 9 103 Saghier, Peles,
Williams, Jones
3–5, 8, 9
Overall
Outcome
1–9, 21–23

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).

AFFIRMED