Ex Parte Kraft et alDownload PDFPatent Trial and Appeal BoardJun 13, 201712580901 (P.T.A.B. Jun. 13, 2017) Copy Citation 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. 12/580,901 10/16/2009 Stephan Kraft 13913-0618001/2009P00219 1406 32864 7590 06/15/2017 FISH & RICHARDSON, P.C. (SAP) PO BOX 1022 MINNEAPOLIS, MN 55440-1022 EXAMINER ALHIJA, SAIF A ART UNIT PAPER NUMBER 2128 NOTIFICATION DATE DELIVERY MODE 06/15/2017 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): PATDOCTC@fr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STEPHAN KRAFT, SERGIO PACHECO-SANCHEZ, GIULIANO CASALE, and STEPHEN DAWSON Appeal 2016-006665 Application 12/580,9011 Technology Center 2100 Before JEAN R. HOMERE, JOHNNY A. KUMAR, and JASON J. CHUNG, Administrative Patent Judges. CHUNG, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the April 10, 2015 Final Rejection of claims 21—26 and 28-41. App. Br. 6. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. INVENTION The invention is directed to generating a queueing model of a computer system. Spec. 13. Claim 21 (emphasis added to highlight the contested limitation) is illustrative of the invention and is reproduced below: 21. A computer-implemented method of evaluating a performance of a computer system based on a queueing model, comprising: 1 According to Appellant, the real party in interest is SAP SE. App. Br. 4. Appeal 2016-006665 Application 12/580,901 defining a workload comprising a plurality of service requests, each service request corresponding to a class of a plurality of classes; applying, by one or more processors, the workload to the computer system that receives and processes the plurality of service requests; measuring, by the one or more processors, a response time of the computer system for each request of the workload to provide a plurality of measured response times; determining, by the one or more processors, a mean response time for each class based on the plurality of measured response times; estimating, by the one or more processors, a mean service demand for each class based on the mean response time for a respective class and a base queueing model that represents the computer system to provide a plurality of mean service demands, each of the plurality of mean service demands defining an average time a respective service request is attended to by the computer system; generating, by the one or more processors, the queueing model based on the mean service demands and characteristics of the workload, the queueing model modeling queuing of the plurality of service requests submitted to the computer system; and processing the queueing model using a plurality of inputs to evaluate the performance of the computer system. 2 Appeal 2016-006665 Application 12/580,901 REJECTIONS AT ISSUE2’3 Claims 21—24, 26, 28—31, 33—38, 40, and 41 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Calzarossa (M. Calzarossa et al., A Workload Model Representative of Static and Dynamic Characteristics 255—266, (Acta Informatica23, 1986), “Calzarossa”). Ans. 2. Claims 25, 32, and 39 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Calzarossa and Pacifici (Giovanni Pacifici et al., CPU demand for web serving: Measurement analysis and dynamic estimation, Performance Evaluation, 531—553 (2008) (Available online December 14, 2007), “Pacifici”). Ans. 2. ANALYSIS Independent claims 21, 28, and 35 recite similar contested limitations. Claims 22—26, 29—34, and 36-41 depend from one of claims 21, 28, and 25. The Examiner maps Calzarossa’s W) to the claimed “estimated mean service demand.” Ans. 2. Moreover, the Examiner maps Calzarossa’s “mean response time” to the claimed “mean response time.” Id. Further, the 2 We have decided the Appeal before us. However, in the event of further prosecution, the Examiner should evaluate claims 3 5—40 in light of In re Nuijten, 500 F.3d 1346 (Fed. Cir. 2007); Subject Matter Eligibility of Computer Readable Media, 1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010). We note that Appellants’ Specification (Spec. 181) states a machine- readable storage device can be an information carrier. 3 The April 10, 2015 Final Rejection includes an analysis for the rejection of claim 27. Final Rej. 5. Claim 27, however, was cancelled via an Amendment filed on March 26, 2015. Moreover, both the April 10, 2015 Final Rejection and Examiner’s Answer do not include claim 27 in its rejection heading. Final Rej. 3; Ans. 2. We, therefore, interpret the April 10, 2015 Final Rejection’s inclusion of an analysis for the rejection of claim 27 as inadvertent. 3 Appeal 2016-006665 Application 12/580,901 Examiner relies on paragraphs 30 and 41 of Appellants’ Specification to equate the claimed “mean response time” to the claimed “estimated service demand.” Id. Appellants argue Calzarossa’s Table 4 discloses, for each class of components, executing W 2 to obtain the values of the mean response times, the standard deviation, skewness, kurtosis, and the throughput rates, which is different than “estimating ... a mean service demand for each class based on the mean response time” (emphases added) as recited in claim 21. App. Br. 13; Reply Br. 1—3. We agree with Appellants. Under the broadest reasonable construction standard, claim terms are given their ordinary and customary meaning, as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). The cited portions of Calzarossa fail to disclose adequately “estimating... a mean service demand for each class based on the mean response time for a respective class and a base queueing model” (emphasis added) as recited in claim 21 (and similarly recited in claims 28 and 35). That is, the cited portions of Calzarossa relied upon by Examiner merely disclose W 2 includes mean response times and mean throughput rates. Ans. 2 (citing Calzarossa, Table 4). Stated differently, the executed result of Calzarossa’s “mean response time” is not used to estimate a mean service demand. Rather, Calzarossa’s “mean response time” is a part of Calzarossa’s W 2 (i.e., W 2 is the element that the Examiner asserts to disclose the claimed “estimated mean service demand”). To say that Calzarossa’s “mean response time” discloses the claimed “estimated mean 4 Appeal 2016-006665 Application 12/580,901 service demand” (emphasis added) runs afoul of the broadest reasonable construction. The Examiner’s reliance on paragraphs 30 and 41 of Appellants’ Specification does not remedy the shortcomings of the cited portions of Calzarossa relied upon by Examiner. Ans. 2. In particular, in rejecting the independent claims, the Examiner relies on Appellants’ Specification recitation of “service time” to be synonymous with the claimed “response time.” Id. (citing Spec. 30, 41). A closer look at paragraph 30 of Appellants’ Specification reveals that “[t]he response time . . . includes both the service time . . . and delays due to resource contention’'' (emphasis added). Spec. 130. Put another way, the cited portions of Appellants’ Specification relied upon by Examiner discloses “response time” is not synonymous with “service time” because the Examiner’s interpretation of “response time” recited in paragraph 30 of Appellants’ Specification did not account for “delays due to resource contention.” Id. Accordingly, for the reasons stated supra, we do not sustain the Examiner’s rejection of claims 22—26 and 28-41. DECISION The Examiner’s decision rejecting claims 21—26 and 28-41 under 35 U.S.C. §§ 102(b) and 103(a) is reversed. REVERSED 5 Copy with citationCopy as parenthetical citation