Ex Parte BIRKESTRAND et al

Patent Trial and Appeal Board

Jul 12, 2018

14160313 (P.T.A.B. Jul. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/160,313 01/21/2014
46797 7590 07/16/2018
Patterson & Sheridan, LLP
24 Greenway Plaza, Suite 1600
Houston, TX 77046
FIRST NAMED INVENTOR
Daniel C. BIRKESTRAND
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.
ROC920130170US 1 8302
EXAMINER
RAZA, MUHAMMAD A
ART UNIT PAPER NUMBER
2449
NOTIFICATION DATE DELIVERY MODE
07/16/2018 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):
Pair_eOfficeAction@pattersonsheridan.com
IBM@P ATTERSONSHERIDAN.COM
rociplaw@us.ibm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL C. BIRKESTRAND,
STEPHANIE L. JENSEN, and PAUL F. OLSEN 1
Appeal2018-000937
Application 14/160,313 2
Technology Center 2400
Before ALLEN R. MacDONALD, JEREMY J. CURCURI, and
NABEEL U. KHAN, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants indicate the real party in interest is International Business
Machines Corporation, Armonk, New York. App. Br. 3.
2 This application was filed January 21, 2014. Related Appeal 2018-000931
(U.S. Patent Application No. 14/169,249) is the child application of this
Application on appeal. App. Br. 4. This appeal and its related appeal are
directed to the same underlying invention and issues. These appeals are
decided concurrently.
Appeal2018-000937
Application 14/160,313
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Application 14/ 169,249 was filed January 31, 2014 as a continuation
of Application 14/160,313 filed January 21, 2014. 35 U.S.C. § 112 (AIA) is
applicable to any patent application filed on or after September 16, 2012.
Representative Claim
Representative claim 1 under appeal reads as follows ( emphasis,
formatting, and bracketed material added):
1. A control arrangement for managing computing
resources from a pool of a plurality of networked computing
systems for use by one or more consumers, the control
arrangement comprising:
at least one hardware management controller coupled
with the plurality of computing systems and comprising a
processor; and
a memory containing a program, which when executed
by the processor, performs an operation, comprising:
[A.] determining, using the processor, that resource usage
of a consumer exceeds an initial amount of computing
resources allocated to the consumer from one or more first
computing systems from the pool, the initial amount of
computing resources associated with a first cost scheme of a
predetermined plurality of cost schemes;
[B.] after an elapse of a predetermined period of time,
and upon determining that the resource usage of the consumer
continues to exceed the initial amount of allocated computing
resources by an excess amount of resource usage:
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Application 14/160,313
[i.] selecting, based on a predetermined billing
policy and the excess amount of resource usage, a second
cost scheme of the plurality of cost schemes to be applied
to the excess amount of resource usage;
[ii.] identifying, using the processor, one or more
second computing systems from the pool having capacity
available under the second cost scheme to host at least a
portion of the excess amount of resource usage, and
[iii.] allocating an additional amount of computing
resources from at least one selected second computing
system to meet the excess amount of resource usage;
[C.] transferring at least the excess amount of resource
usage from the one or more first computing systems to the at
least one selected second computing system, wherein
transferring at least the excess amount of resource usage
comprises transmitting instructions from the at least one
hardware management controller to one of
[ i.] ( 1) the one or more first computing systems
and the at least one selected second computing system,
and
[ii.] (2) one or more hypervisors associated with
the one or more first computing systems and the at least
one selected second computing system; and
[D.] determining, based on an associated cost of the
additional amount of computing resources, whether to
deallocate the additional amount of computing resources to the
pool, wherein the associated cost is determined based on the
second cost scheme applied to the excess amount of resource
usage.
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Appeal2018-000937
Application 14/160,313
References
Lappas et al. US 2009/0182605 Al Jul. 16, 2009
Maclinovsky et al. US 2011/0078705 Al
US 2012/0179824 Al
Mar. 31, 2011
Jul. 12, 2012 Jackson
Kirchhofer US 2013/0014107 Al Jan. 10, 2013
Rejections
A.
1. The Examiner rejected claims 1-20 under 35 U.S.C. § 112(a), as
failing to comply with the written description requirement. Final Act. 4---6.
We select claim 1 as representative. 3 Appellants argue separate
patentability for claim 6, but do not argue such for claims 2-5 and 7-20.
Except for our ultimate decision, we do not discuss this § 112(a) rejection of
claims 2-5 and 7-20 further herein.
2. The Examiner rejected claims 1-20 under 35 U.S.C. § 112(a), as
failing to comply with the written description requirement. Final Act. 6-10.
Appellants appeal and argue this second rejection under 35 U.S.C.
§ 112(a). App. Br. 17-18. However, because we do not find in the Answer
that the Examiner has addressed Appellants' arguments, and we are unable
to determine a basis for this second rejection that does not overlap with the
first rejection under 35 U.S.C. § 112(a), we summarily reverse this second
rejection under 35 U.S.C. § 112(a).
3 See 37 C.F.R. § 4I.37(c)(l)(iv).
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Appeal2018-000937
Application 14/160,313
C.
The Examiner rejected claims 1-20 under 35 U.S.C. § 112(b), as
being indefinite. Final Act. 10-11.
We select claim 1 as representative. Appellants do not argue separate
patentability for claims 2-20. Except for our ultimate decision, we do not
discuss the § 112(b) rejection of claims 2-20 further herein.
D.
The Examiner rejected claims 1-20 under 35 U.S.C. § 101 "because
the claimed invention is directed to a judicial exception (i.e., a law of nature,
a natural phenomenon, or an abstract idea) without significantly more."
Final Act. 11-12. That is, because the claimed invention is directed to
patent ineligible subject matter.
We select claim 1 as representative. Appellants do not argue separate
patentability for claims 2-20. Except for our ultimate decision, we do not
discuss the § 101 rejection of claims 2-20 further herein.
E.
The Examiner rejected claims 1-16 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Kirchhofer, Lappas, and Jackson.
We select claim 1 as representative. Appellants argue separate
patentability for claims 4---6 and 11-13. However, our decision as to the
§ 103 rejection of claim 1 is determinative for all claims under this § 103
rejection. Therefore, except for our ultimate decision, we do not discuss the
§ 103 rejection of claims 2-16 further herein.
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Appeal2018-000937
Application 14/160,313
F.
The Examiner rejected claims 17-20 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Kirchhofer, Lappas, Jackson,
and Maclinovsky.
Appellants argue separate patentability for claims 1 7 and 19.
However, our decision as to the § 103 rejection of claim 1 is determinative
for all claims under this§ 103 rejection. Therefore, except for our ultimate
decision, we do not discuss the § 103 rejection of claims 17-20 further
herein.
Issues on Appeal
Did the Examiner err in rejecting representative independent claim 1
and dependent claim 6 under 35 U.S.C. § 112(a) as failing to comply with
the written description requirement?
Did the Examiner err in rejecting representative independent claim 1
under 35 U.S.C. § 112(b) as being indefinite?
Did the Examiner err in rejecting representative independent claim 1
under 35 U.S.C. § 101 as being directed to patent ineligible subject matter?
Did the Examiner err in rejecting representative independent claim 1
under 35 U.S.C. § 103 as being obvious?
ANALYSIS
The Examiner rejects the claims herein on the same basis as the
rejection of the claims in related divisional Application 14/169,249 on
appeal as 2018-000931. The arguments Appellants present in this Appeal
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Application 14/160,313
are the same arguments presented in Appeal 2018-000931. We reach the
same results herein for the reasons we set forth in our decision directed to
Appeal 2018-000931. We incorporate that decision here in full.
CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 1-20 as being
unpatentable under 35 U.S.C. § 112(a), as failing to comply with the written
description requirement.
(2) Appellants have established that the Examiner erred in rejecting
claims 1-20 under 35 U.S.C. § 112(b), as being indefinite.
(3) Appellants have established that the Examiner erred in rejecting
claims 1-20 under 35 U.S.C. § 101, as being directed to non-statutory
subject matter.
(4) Appellants have established that the Examiner erred in rejecting
claims 1-20 as being unpatentable under 35 U.S.C. § 103(a).
(5) Claims 1-20 are not patentable.
DECISION
The Examiner's rejection of claims 1-20 as being unpatentable under
35 U.S.C. § 112(a) is affirmed.
The Examiner's rejection of claims 1-20 as being unpatentable under
35 U.S.C. § 112(b) is reversed.
The Examiner's rejection of claims 1-201 under 35 U.S.C. § 101, as
being directed to non-statutory subject matter, is reversed.
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Appeal2018-000937
Application 14/160,313
The Examiner's rejection of claims 1-20 as being unpatentable under
35 U.S.C. § 103(a) is reversed.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner's decision is affirmed. See
37 C.F.R. § 4I.50(a)(l).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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