Ex Parte Kraft et al

Patent Trial and Appeal Board

Jun 13, 2017

12580901 (P.T.A.B. Jun. 13, 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.
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.
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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.
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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
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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
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