Ex Parte Blaisdell et al

Patent Trial and Appeal BoardMar 6, 2013

11044463 (P.T.A.B. Mar. 6, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RUSSELL C. BLAISDELL, BRYAN CHRISTOPHER CHAGOLY, NDUWUISI I. EMUCHAY, and KIRK MALCOLM SEXTON ____________ Appeal 2010-009885 Application 11/044,463 Technology Center 2100 ____________ Before JOHN A. JEFFERY, ELENI MANTIS MERCADER, and DAVID C. McKONE, Administrative Patent Judges. McKONE, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-35, which constitute all the claims pending in this application. See May 20, 2009, Notice of Appeal. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. Appeal 2010-009885 Application 11/044,463 2 THE INVENTION Appellants’ invention relates to detecting performance issues on a server in an enterprise and executing corrective actions in the enterprise to correct the performance issue. See Spec. 7: 3-8. Claim 12, which is illustrative of the invention, reads as follows: 12. A system for managing event responses in a distributed network environment, comprising: a management server; and a defined set of management agents connected to the management server, wherein a management agent in the defined set of management agents detects a threshold violation at a specific location on a monitored server and sends a violation event to the management server; wherein an association between the violation event and a corrective action is defined on the management server; wherein the management server identifies the defined set of management agents based on the violation event received and distributes the corrective action to the defined set of management agents; and wherein each management agent in the defined set of management agents runs the corrective action on its respective monitored server to remedy a performance problem. THE REJECTIONS Claims 1-11 and 25-35 stand rejected under 35 U.S.C. § 101 as directed to non-statutory subject matter. See Final Rej. 2-3.1 1 Throughout this opinion, we refer to the Final Rejection mailed February 20, 2009 (“Final Rej.”), the Supplemental Appeal Brief filed March 10, 2010 Appeal 2010-009885 Application 11/044,463 3 Claims 1-35 stand rejected under 35 U.S.C. § 102(b) as anticipated by Fox (Fox et al., CLUSTER-BASED SCALABLE NETWORK SERVICES, SIGOPS Oper. Syst. Rev. 31(5) (Oct. 1, 1997), pp. 78-91). See Final Rej. 4-9. In the Appeal Brief, Appellants only argue the anticipation rejection of claims 12-24. See App. Br. 4, 9. Appellants do not argue the Section 101 rejection or the anticipation rejection of claims 1-11 and 25-35. See id. Rather, claims 1-11 and 25-35 are said to be “withdrawn from consideration but not cancelled.” See App. Br. 4. Accordingly, we summarily affirm the Section 101 rejection and the anticipation rejection of claims 1-11 and 25- 35. We address below the anticipation rejection of claims 12-24. ISSUE The dispositive issue raised by Appellants’ contentions is whether Fox discloses “a defined set of management agents connected to [a] management server, wherein a management agent in the defined set of management agents detects a threshold violation at a specific location on a monitored server and sends a violation event to the management server” as recited in claim 12. See App. Br. 12-13 (emphasis added). ANALYSIS In finding that Fox anticipates independent claim 12, the Examiner maps Fox’s “manager” (shown in Figure 1 and described in § 2.1 of Fox) to the “management server” of claim 12, and Fox’s “worker stubs” (shown as “WS” in Figure 1) to claim 12’s “management agents.” See Ans. 4. The (“App. Br.”), the Examiner’s Answer mailed October 22, 2009 (“Ans.”), and the Reply Brief filed December 22, 2009 (“Reply Br.”). Appeal 2010-009885 Application 11/044,463 4 Examiner further maps Fox’s “workers” (shown as “W” in Figure 1) to claim 12’s “monitored servers.” See id. According to Fox, at Section 2.2.5, “[t]he worker stub provides mechanisms for workers to implement some required behaviors for participating in the system (e.g., supplying load data to assist the manager in load balancing decisions and reporting detectable failures in their own operation).” Appellants contend that Fox’s worker stubs do not “detect[] a threshold violation” or “send[] a violation event to the management server” as recited by claim 12. See App. Br. 12-13. Instead, Appellants argue, Fox’s manager, which the Examiner equates to claim 12’s “management server,” detects threshold violations. See id. We agree with Appellants. The Examiner cites Section 4.5, paragraph 1, of Fox as showing a management agent detecting a threshold violation and sending a violation event to a management server. See Ans. 4. According to Section 4.5 of Fox, queue lengths at distillers (a type of worker) are used as information to perform load balancing among workers. However, the queue length is monitored by the manager (management server), not the worker stubs (management agents). See Fox, § 4.5. According to Fox, “[a]s queue lengths grow due to increased load, the moving average of the queue length maintained by the manager starts increasing; when the average crosses a configurable threshold H, the manager spawns a new distiller to absorb the load.” Id. (emphasis added). Fox’s manager, not its worker stubs, detects a threshold violation (moving average of a queue length exceeding the configurable threshold H). Thus, the Examiner has not shown that a management agent detects a threshold violation. Moreover, since Fox’s manager (management server) detects the threshold violation, Fox does not Appeal 2010-009885 Application 11/044,463 5 disclose a worker stub (management agent) sending a violation to a management server. In response to Appellants’ arguments, the Examiner finds that Fox discloses an additional feature in which, when Fox’s manager has crashed, “the functionality provided by the manager is distributed across the system.” Ans. 8 (citing Fox, § 3.1.2, ¶ 3). According to the Examiner, “all of the functionality that Fox describes in relation to the manager is also shared by each of the workers, and will be carried out as network conditions require.” Ans. 8-9. In this situation, the Examiner finds, “Fox reduces to that of the claimed invention.” Ans. 9. According to paragraph 3.1.2, “manager stubs” (shown as “MS” in Figure 1 of Fox) cache load information from distillers. “The cached information provides a backup so that the system can continue to operate (using slightly stale load data) even if the manager crashes.” Id. While this passage describes “the system” maintaining some functionality without an operational manager, it does not specifically disclose what functionality is maintained and how it is implemented. In particular, Fox does not disclose that a worker or worker stub acquires “all of the functionally” of the manager in the event of such a crash. Rather, it merely states that the cached information is used so that “the system can continue to operate . . . .” Id. For example, there is no indication in Fox that a worker or worker stub uses information cached by a manager stub to detect threshold violations and send violation events to the manager (which presumably is inoperable at this point) or to another worker or worker stub also functioning as a manager. See Reply Br. 2-3. Thus, we disagree with the Examiner’s finding that Appeal 2010-009885 Application 11/044,463 6 Fox’s workers can assume the functionality of the manager as to detecting threshold violations and sending violation events. Accordingly, we do not sustain the rejection of claim 12 and claims 13-24, which depend on claim 12. Appellants’ contentions raise additional issues. Because we are persuaded of Examiner error by the identified issue, which is dispositive of the appeal, we do not reach the additional issues.2 ORDER The decision of the Examiner to reject claims 1-11 and 25-35 under Section 101 is affirmed. The decision to reject claims 1-11 and 25-35 under Section 102(b) is affirmed. The decision to reject claims 12-24 under Section 102(b) is reversed. 2 The Examiner should consider whether claim 12 is indefinite for claiming both an apparatus and a method of use. See IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1384 (Fed. Cir. 2005). For example, while claim 12 recites a “system for managing event responses,” an apparatus, it also recites that “the management server identifies the defined set of management agents” and that “each management agent . . . runs the corrective action . . . ,” component actions rather than component capabilities. See In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1318 (Fed. Cir. 2011) (“Like the language used in the claim at issue in IPXL (‘wherein . . . the user uses’), the language used in Katz’s claims (‘wherein . . . callers digitally enter data’ and ‘wherein . . . callers provide . . . data’) is directed to user actions, not system capabilities.”). Appeal 2010-009885 Application 11/044,463 7 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). See 37 C.F.R. § 1.136(a)(1)(iv) (2010). AFFIRMED-IN-PART rwk