Ex Parte Arndt et al

Patent Trial and Appeal BoardMar 16, 2016

13444603 (P.T.A.B. Mar. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/444,603 04/11/2012 85096 7590 Duke W, Yee Yee & Associates, P.C. P.O. Box 802333 Dallas, TX 75380 03/18/2016 FIRST NAMED INVENTOR Richard L. Arndt 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 ATTORNEY DOCKET NO. CONFIRMATION NO. AUS920100393US2 7576 EXAMINER HICKS, AUSTIN ART UNIT PAPER NUMBER 2118 NOTIFICATION DATE DELIVERY MODE 03/18/2016 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): ptonotifs@yeeiplaw.com mgamez@yeeiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RICHARD L. ARNDT and FREEMAN L. RAWSON III Appeal2014-002241 Application 13/444,603 1 Technology Center 2100 Before ELENI MANTIS MERCADER, JEFFREY A. STEPHENS, and JOHN D. HAMANN, Administrative Patent Judges. HAMANN, Administrative Patent Judge. DECISION ON APPEAL Appellants file this appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1-11. We have jurisdiction under 35 U.S.C. Â§ 6(b). We reverse. THE CLAIMED INVENTION Appellants' claimed invention relates to allocating the energy in a computer system to a plurality of groups of virtual machines based on a policy. Spec. i-f 7. Of the claims on appeal, claim 1 is illustrative of the subject matter of the appeal and is reproduced below. 1 According to Appellants, the real party in interest is International Business Machines Corporation. Br. 2. Appeal2014-002241 Application 13/444,603 1. A method for managing energy, the method compnsmg: identifying, by a processor unit, a plurality of groups of virtual machines in a computer system; and allocating, by the processor unit, the energy in the computer system for a next predetermined time interval to the plurality of groups of virtual machines based on a policy, identified using a predefined hierarchy of power management defining a group priority and a minimum energy for each group and a minimum energy and a priority for each virtual machine for use with the policy. REJECTIONS ON APPEAL ( 1) The Examiner rejected claim 1 under 3 5 U.S. C. Â§ 112, second paragraph as being indefinite for failing to particularly point out and distinctly claim the subject matter which the applicants regard as the invention. With respect to the phrase "identified using a predefined hierarchy of power management defining a group priority," it is not clear what is "identified." (2) The Examiner rejected claims 1-3 and 5-11 under 35 U.S.C. Â§ 103 (a) as being unpatentable over the combination of Govindan et al. (US 2010/0011227 Al, published Jan. 14, 2010) (hereinafter "Govindan") and Heath et al. (US 2007/0136614 Al, published June 14, 2007) (hereinafter "Heath"), collectively referred to as the "first combination." (3) The Examiner rejected claim 4 under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Govindan, Heath, and Bozek et al. (US 2010/0218014 Al, published Aug. 26, 2010) (hereinafter "Bozek"), collectively referred to as the "second combination." 2 Appeal2014-002241 Application 13/444,603 DISPOSITIVE ISSUES ON APPEAL For this appeal, there are two dispositive issues: (1) Whether the Examiner erred in finding claim 1 indefinite because it is unclear to what the "identified" phrase refers. (2) Whether the Examiner erred in finding the first combination teaches or suggests "allocating ... the energy in the computer system for a next predetermined time interval to the plurality of groups of virtual machines," as recited in claim 1. ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' contentions that the Examiner erred. We find Appellants' arguments with respect to the two dispositive issues persuasive. (1) What is identified Appellants argue claim 1 is not indefinite. See Br. 5. Specifically, Appellants argue the phrase "identified using a predefined hierarchy of power management defining a group priority and a minimum energy for each group and a minimum energy and a priority for each virtual machine for use with the policy" clearly refers to and is associated with the term "policy." See id. Appellants argue that this "identified" phrase is adjacent to "policy" and one of ordinary skill in the art would understand that "policy" is what is being "identified." Br. 5. The Examiner finds that in claim 1 it is unclear what is being "identified." See Ans. 2. The Examiner finds in claim 1 the "identified" phrase can refer to a virtual machine, a plurality of groups, or a policy. See id. 3 Appeal2014-002241 Application 13/444,603 The test for definiteness under 35 U.S.C. Â§ 112, second paragraph, is whether "those skilled in the art would understand what is claimed when the claim is read in light of the specification." Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations omitted); see also Ex parte Miyazaki, 89 USPQ2d 1207, 1210-13 (BPAI 2008) (precedential) (applying the Orthokinetics standard). We agree with Appellants that one of ordinary skill in the art would understand that the "identified" phrase refers to the term "policy," which it immediately follows. See Claim Appendix, claim 1. Furthermore, we note the "identified" phrase also ends with reference to "the policy," which serves further to clarify "policy" is what is being identified. See id. Accordingly, we do not sustain this rejection. (2) Allocating the energy in the computer system Appellants argue the first combination, and Govindan in particular, fails to teach or suggest "allocating ... the energy in the computer system for a next predetermined time interval to the plurality of groups of virtual machines," as recited in claim 1. Br. 14. Specifically, Appellants argue Govindan does not teach allocating energy, but instead teaches attributing past energy consumption to virtual machines as an accounting and reporting function. See Br. 14--15 (citing Govindan i-fi-f 13, 17, 18, 25, 33, Fig. 1). Appellants also argue, therefore, Govindan also does not teach or suggest allocating energy for "a next predetermined time interval." Br. 14. The Examiner finds Govindan teaches this disputed limitation. See Ans. 4. Specifically, the Examiner finds Govindan teaches determining energy used by each of a group of virtual machine by allocating the energy resource amongst the virtual machines. See Ans. 4 (citing Govindan i-fi-f 13- 4 Appeal2014-002241 Application 13/444,603 17). The Examiner also finds Govindan teaches this allocation can occur for a next predetermined time interval. See id. (citing Govindan i-fi-f 13-17, 27) (finding "Govindan teaches energy obtained during a sampling interval [is] assigned to the regions and ... allocating energy is based at least in part on 'energy accumulated by all of the server virtual machines that are being shared during interval t. "'). We find Appellants' arguments persuasive. We agree that the cited portions of Govindan fail to teach this disputed limitation. See Govindan i-fi-f 13-17, 27, 34. We also agree with Appellants Govindan teaches attributing energy to virtual machines as an accounting function rather than allocating the energy in the system to virtual machines for a next time interval, as in claim 1. See id. Although Govindan uses the term "allocate," it applies a meaning (i.e., attribute) different than the broadest reasonable interpretation consistent with the Specification of "allocating" in claim 1. In addition, we agree with Appellants the "next predetermined time interval" in the claim refers to a future time interval, i.e., time that has not yet passed, not merely a time interval following another interval, and the Examiner has not shown Govindan allocates future energy use. CONCLUSION Our above findings and reasoning also apply to the other claims on appeal because each of these other claims 2-11, depend from claim 1 and incorporate the disputed limitation. DECISION We reverse the Examiner's 35 U.S.C. Â§ 112 rejection of claim 1. 5 Appeal2014-002241 Application 13/444,603 We reverse the Examiner's 35 U.S.C. Â§ 103(a) rejections of claims 1- 11. REVERSED 6