Ex Parte Aschoff et al

Patent Trial and Appeal BoardSep 24, 2012

10929081 (P.T.A.B. Sep. 24, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JOHN G. ASCHOFF, DAVID D. CHAMBLISS, and BRUCE MCNUTT ____________ Appeal 2010-004886 Application 10/929,081 Technology Center 2400 ____________ Before BRUCE R. WINSOR, JOHN A. EVANS, and JEREMY J. CURCURI, Administrative Patent Judges. WINSOR, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-14 and 16-30, which constitute all the claims pending in this application. Claim 15 is cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2010-004886 Application 10/929,081 2 STATEMENT OF THE CASE Appellants’ invention relates to optimizing the revenue realized by the operator of a data storage service under multiple service level agreements. (Spec. 1:4-5). Claim 1, which is illustrative of the invention, reads as follows: 1. A method to optimize revenue realized under multiple service level agreements, comprising the steps of: providing an information storage and retrieval system, comprising one or more data storage devices; entering into (N) service level agreements with one storage services customer by a storage services provider to provide data storage services for (N) applications using said information storage and retrieval system, wherein each of said (N) service level agreements specifies a maximum response time RTSLA comprising an elapsed time from receipt by the storage services provider from a storage services customer of a request to write data to a data storage device or read data from a data storage device and completion of that request, and wherein a (j)th SLA recites a RT(j)SLA, wherein (j) is greater than or equal to 1 and less than or equal to (N), and wherein (N) is greater than 1; calculating for each value of (j), a monetary value per unit throughput νj for the (j)th application; calculating (N) optimum data flow rates to maximize the revenues to the storage services provider; determining for each value of (j) an optimum data flow rate X(j)OPT; initializing, for each value of (j), a maximum data flow rate X(j)MAX that the (j)th application can utilize; determining, for each value of (j), if X(j)OPT equals X(j)MAX; for each value of (j) wherein X(j)OPT does not equal X(j)MAX, delaying execution of I/O requests from the (j)th Appeal 2010-004886 Application 10/929,081 3 application, such that the average response time for the (j)th application equals RT(j)SLA. Claims 1-14 and 16-30 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Karnik (US 2004/0064557 A1; Apr. 1, 2004) and Chiang (US 2002/0103895 A1; Aug. 1, 2002). (Ans. 4-11). Rather than repeat the arguments here, we refer to the Briefs and the Answer for the respective positions of Appellants and the Examiner. ISSUE The dispositive issue raised by Appellants’ contentions1 is as follows: Does Karnik teach or suggest “calculating for each value of (j), a monetary value per unit throughput νj for the (j)th application[,] calculating (N) optimum data flow rates to maximize the revenues to the storage services provider[, and] determining for each value of (j) an optimum data flow rate X(j)OPT” (hereinafter the disputed limitations), as recited in claim 1? ANALYSIS The Examiner finds that Karnik teaches the disputed limitations at paragraphs [0006], [0040], and [0045]-[0069]. (Ans. 5). Appellants contend “that neither Karnik et al., nor Chiang, singly or in combination, teach[es] calculating (N) optimum data flow rates to maximize the revenues to the storage services provider, as recited by Appellants' claim 1.” (App. Br. 21). We agree with Appellants. 1 Appellants’ contentions raise additional issues. However, we are persuaded of error with regard to the identified issue, which is dispositive of the appeal. Accordingly, we do not reach the additional issues raised by Appellants’ contentions. Appeal 2010-004886 Application 10/929,081 4 As an initial matter, we do not agree with Appellants’ contention (App. Br. 16-17) that Karnik does not contemplate optimizing revenue under multiple service agreements. Karnik states, for example, that “[d]ifferent policies can be used [to distribute resources] depending on the aim of the allocation, e.g. fair sharing of capacity, maximizing revenue generated, ensuring high resource utilization, minimizing perturbation of the current allocation etc.” (Karnik, ¶ [0037] (emphasis added); see also ¶¶ [0008], [0045]; claims 10, 20, 41). However, the resource allocation policy to maximize revenue generated that is taught by the cited passages of Karnik is as follows: “When the system is lightly loaded, the service provider may choose to allow a customer to exceed its guaranteed throughput, since this results in additional revenue.” (Karnik, ¶ [0045]). Karnik teaches that “[t]he objective of the algorithm [described in paragraphs [0045]-[0069] relied on by the Examiner] is to enforce fair sharing of the available capacity amongst the active customers.” (Id.). The Examiner explains: Karnik in at least [0052] discloses that a various types of throughput are computed in determining the capacity of the system and the various data capacities of the customers. Both terms “desired” and “optimum” are in relation to the flow of data. Of the throughputs in this case disclosed in [0046-0065] of Karnik, at least “desired throughput” is equivalent to the Applicant’s “optimum flow rate”. (Ans. 14 (brackets in original)). While the Examiner’s position that “desired throughput” and “optimum data flow” rates are equivalent terms is not unreasonable, the Examiner’s explanation does not establish that Karnik teaches or suggests that the “desired throughput” is a throughput that “maximize[s] the revenues to the storage services provider” (emphasis Appeal 2010-004886 Application 10/929,081 5 added), as recited in claim 1 (see Reply Br. 4), as opposed to achieving some other policy objective, such as enforcing fair sharing of available capacity (see Karnik, ¶ [0045]-[0046]). The Examiner does not persuasively identify any passage in Chiang that cures the deficiency in Karnik’s disclosure. On the record before us, we find that the Examiner has not established that Karnik, alone or in combination with Chiang, teaches the disputed limitations. Accordingly, we will not sustain the rejection of (1) claim 1; (2) independent claims 14, 16, 23, 24, and 30, which recite limitations that are substantially similar to the disputed limitations; and (3) claims 2-13, 17-22, and 25-29, which depend from claims 1, 16, and 24 respectively. ORDER The decision of the Examiner to reject claims 1-14 and 16-30 as unpatentable over Karnik and Chiang is reversed.2 REVERSED babc 2 In the event of further prosecution of claims 24-30, or claims in similar form, we leave to the Examiner to ascertain whether such claims are directed to statutory subject matter under 35 U.S.C. § 101. See In re Nuijten, 500 F.3d 1346, 1357 (Fed. Cir. 2007); David J. Kappos, Subject Matter Eligibility of Computer Readable Media, 1351 OFF. GAZ. PAT. OFFICE 212 (Feb. 23, 2010).