Ex Parte Chen et al

Patent Trial and Appeal BoardMar 31, 2017

13086964 (P.T.A.B. Mar. 31, 2017)

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. 13/086,964 04/14/2011 Yuan Chen 82467469 5219 56436 7590 Hewlett Packard Enterprise 3404 E. Harmony Road Mail Stop 79 Fort Collins, CO 80528 EXAMINER TODD, GREGORY G ART UNIT PAPER NUMBER 2457 NOTIFICATION DATE DELIVERY MODE 04/04/2017 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): hpe.ip.mail@hpe.com chris. mania @ hpe. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte YUAN CHEN, ANSHUL GANDHI, DANIEL JUERGEN GMACH, CHRIS D. HYSER, MARTIN ARLITT, MANISH MARWAH, and CULLEN E. BASH Appeal 2016-005173 Application 13/086,964 Technology Center 2400 Before: BRADLEY W. BAUMEISTER, JASON V. MORGAN, and JOHN R. KENNY, Administrative Patent Judges. KENNY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from rejections of claims 1—21. Final Act. 1; App. Br. 8. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2016-005173 Application 13/086,964 CLAIMED INVENTION According to Appellants, their invention relates to methods, apparatus, and articles of manufacture to provision data center resources. Abstract. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method to provision data center resources, comprising: determining a first base workload based on a first summation of a first number of variances of projected demand for a first workload pattern over a first number of provisioning time intervals, wherein the first number of variances of projected demand are based on a difference between a workload during the first number of provisioning time intervals and a representative workload pattern; determining a second base workload based on a second summation of a second number of variances of projected demand for the second workload pattern over a second number of provisioning time intervals; selecting provisioning time intervals among the first and second number of provisioning time intervals based on the first workload pattern and the second workload pattern, wherein the first summation and the second summation reduces a quantity of the first number of provisioning time intervals and the second number of provisioning time intervals while also reducing a quantity of the first number of variances and the second number of variances, and wherein resources are prevented from being re-provisioned during the first and second number of provisioning time intervals; provisioning a first portion of data center resources to operate during the reduced first number of provisioning time intervals based on the first base workload, the first base workload being based on data patterns of a data center; and configuring a second portion of the data center resources to operate when an actual workload exceeds a threshold corresponding to the second base workload. 2 Appeal 2016-005173 Application 13/086,964 REFERENCE Jain US 2010/0218005 A1 Aug. 26, 2010 REJECTIONS Claims 1—21 stand rejected under 35 U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the applicant regards as the invention. Final Act. 2—3; Ans. 2. Claims 1—21 also stand rejected under 35 U.S.C. § 102(e) as anticipated by Jain. Final Act. 3; Ans. 3. CONTENTIONS AND ANALYSIS Rejection Under 35 U.S.C. § 112, Second Paragraph The Examiner rejected claims 1—21 as indefinite under 35 U.S.C. § 112, second paragraph, because, as explained by the Examiner, The claims have been amended to include “wherein resources are prevented from being re-provisioned during the first and second number of provisioning time intervals.”[1] However, it is not clear what such prevention is limited to or what is meant by having such prevention of resources being re-provisioned, particularly during the first and second number of provisioning time intervals. The amendment also appears to conflict with the last limitation of the claim of configuring a second portion of resources to operate. It is not clear if such operation of the second portion is different from re-provisioning of resources, nor how such resources can be configured to operate (provisioned?) when also prevented from being re-provisioned (provisioned?). Final Act. 3. 1 This quoted claim language was added by amendment in Appellants’ Amendment and Response Under 37 CFR § 1.111, filed December 16, 2014. 3 Appeal 2016-005173 Application 13/086,964 Based on this exposition, the Examiner held claims 1—21 to be indefinite. We do not see any error in this analysis by the Examiner.2 Appellants do not identify any errors in that analysis, and, in fact, do not address this indefiniteness rejection on appeal. App. Br. 8—13. Accordingly, we sustain the rejection. Rejection Under 35 U.S.C. § 102(e) Appellants argue Jain does not disclose various limitations of the independent claims. App. Br. 8—12. One of the disputed limitations is the limitation that has been held indefinite in the sustained indefmiteness rejection, discussed above. App. Br. 10. Because Appellants’ arguments relate to the claim language found to be indefinite (see App. Br. 10), we reverse the anticipation rejection pro forma. See In re Steele, 305 F.2d 859, 862, (CCPA 1962) (holding that the Examiner and the Board were wrong in relying on what, at best, were speculative assumptions as to the meaning of the claims and in basing a rejection under 35 U.S.C. § 103 thereon). DECISION We affirm the indefmiteness rejection of claims 1—21. We reverse pro forma the anticipation rejection of claims 1—21. 2 The quoted paragraph above refers to “the last limitation of the claim.” The last limitation of each pending independent claim presents the same apparent conflict. 4 Appeal 2016-005173 Application 13/086,964 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 5