Ex Parte Leymann et al

Patent Trial and Appeal BoardMay 24, 2013

10042799 (P.T.A.B. May. 24, 2013)

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. 10/042,799 01/09/2002 Frank Leymann DE920000043US1 (183) 5078 46320 7590 05/24/2013 CAREY, RODRIGUEZ, GREENBERG & O''''KEEFE, LLP STEVEN M. GREENBERG 7900 Glades Road SUITE 520 BOCA RATON, FL 33434 EXAMINER TODD, GREGORY G ART UNIT PAPER NUMBER 2457 MAIL DATE DELIVERY MODE 05/24/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte FRANK LEYMANN and DIETER ROLLER ____________________ Appeal 2012-012422 Application 10/042,799 Technology Center 2400 ____________________ Before THU A. DANG, JAMES R. HUGHES, and GREGORY J. GONSALVES, Administrative Patent Judges. DANG, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-012422 Application 10/042,799 2 I. STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 15-29. Claims 1-14 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. A. INVENTION Appellants’ invention relates to operating a computer system comprising at least one application client, at least two application servers suitable to process requests of the application clients, and a database accessed by the two application servers (Spec. 1, ll. 5-10). B. ILLUSTRATIVE CLAIM Claim 15 is exemplary: 15. A method of operating a computer system, wherein the computer system comprises an application client, a first application server configured to process requests of the application client, a second application server configured to process requests of the application client, and a database shared by the first and second application servers, the method comprising: detecting, by the first application server, that the shared database is not accessible by the first application server; receiving, by the first application server, a request from the application client to the first application server; forwarding, by the first application server, the request to the second application server while the shared database is not accessible by the first application server; receiving, by the second application server, the request from the first application server; Appeal 2012-012422 Application 10/042,799 3 accessing, by the second application server, the shared database; generating, by the second application server, a response to the request; forwarding, by the second application server, the response to the first application server while the shared database is not accessible by the first application server; receiving, by the first application server, the response from the second application server; and forwarding, by the first application server, the response to the application client. C. REJECTIONS The prior art relied upon by the Examiner in rejecting the claims on appeal is: Holmberg US 6,247,141 Jun. 12, 2001 Yaokum US 6,421,674 Jul. 16, 2002 Arora US 6,859,834 Feb. 22, 2005 (Filed May 1, 2000) Graham US 7,730,019 B1 Jun. 1, 2010 (Filed Nov. 1, 2000) Claims 15, 19, 20, 24, 25, and 29 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Yaokum, Graham, and Arora. Claims 16-18, 21-23, and 26-28 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Yaokum, Graham, Arora, and Holmberg. Appeal 2012-012422 Application 10/042,799 4 II. ISSUE The main issue before us is whether the Examiner has erred in determining that the combination of Yaokum, Graham, and Arora teaches or would have suggested “forwarding, by the first application server, the request to the second application server while the shared database is not accessible by the first application server” (claim 15, emphasis added). III. FINDINGS OF FACT The following Findings of Fact (FF) are shown by a preponderance of the evidence. Graham 1. Graham discloses searching an information network 30 for one or more remote databases 34 (col. 9, ll. 18-19; Figs. 6A-C), which comprises determining if a current database 34 is unreadable (col. 11, ll. 21-22; Fig. 6A)). 2. Unreadable condition may result from access controls placed on the current database 34, as might be applied to a commercial pay-for-use database (col. 11, ll. 62-65). Arora 3. Arora discloses enabling application server request failover, wherein if a request failed for some reason, the requesting thread sends the request to a different application server (col. 17, ll. 32-43; Figs. 2A and 15). IV. ANALYSIS Appellants contend that “in Graham the handling does not include the forwarding of the request to a different application server” (App. Br. 10). Appeal 2012-012422 Application 10/042,799 5 Further, Appellants contend that Graham’s determining of unreadable databases differs from determining whether a database is “not accessible” as claimed since “‘unreadable’ is different from ‘not accessible’” wherein “an accessible database may be unreadable if ‘certain access controls’ are placed on the database or if the database is ‘in an unknown format’” (id.). By arguing that Graham does not teach “the forwarding of the request to a different application server” (App. Br. 10), Appellant appears to be arguing that Graham alone fails to anticipate the claimed invention. However, as the Examiner points out, “one cannot show nonobviousness by attaching references individually where the rejections are based on combinations of references” wherein “Appellant has not responded to the Arora patent” which discloses that “the request is sent to another application server in the cluster which can access the same database” (Ans. 10-11). That is, the test for obviousness is not what the references show individually but what the combined teachings would have suggested to one of ordinary skill in the art. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The Examiner finds that “Graham teaches encountering a database that is unreadable as per access controls being placed on the database…, the database is thus not accessible to that user and further ‘unreadable’” (Ans. 10), and concludes that it would have been obvious “to incorporate the use of Arora’s system [of sending a request to another application server] with Yoakum and Graham” (Ans. 7). We find no error in the Examiner’s finding and conclusion. We give the claim its broadest reasonable interpretation consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Claim 15 does not provide any definition for “accessible” other than Appeal 2012-012422 Application 10/042,799 6 the shared database is not accessible by the first application server. That is, claim 15 does not preclude a database that is unreadable as well as inaccessible. Graham discloses determining if a current database is unreadable (FF 1), wherein an unreadable condition may result from access controls placed on the current database, as might be applied to a commercial pay-for-use database (FF 2). In particular, Graham teaches that an unreadable condition may be placed on a database by access controls based on payment for use. That is, if there is no payment for use, the database cannot be accessed or read. Thus, Graham at the least suggests that the database may be not accessible, and thus unreadable, based on payment. Furthermore, Arora discloses that if a request by an application server failed, the requesting thread sends the request to a different application server (FF 3). Thus, Arora at the least suggests that if a database is not accessible by a first application server, forwarding the request to a second application server. We find no error in the Examiner’s conclusion that the combination of Yaokum, Graham, and Arora would at least have suggested “forwarding, by the first application server, the request to the second application server while the shared database is not accessible by the first application server” as required by claim 15. The Supreme Court has determined that the conclusion of obviousness can be based on the interrelated teachings of multiple patents, the effects of demands known to the design community or present in the marketplace, and the background knowledge possessed by a person having ordinary skill in the art. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). The skilled artisan would “be able to fit the teachings of multiple Appeal 2012-012422 Application 10/042,799 7 patents together like pieces of a puzzle” since the skilled artisan is “a person of ordinary creativity, not an automaton.” Id. at 420-21. We are not persuaded and Appellants have presented no persuasive evidence that combining the teaching of forwarding a request to a second application server when a request failed as taught by Arora with the teaching of determining whether a database is not accessible as taught by the combined teachings of Yoakum and Graham was “uniquely challenging or difficult for one of ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR at 418). Therefore, we find the Examiner’s proffered combination of familiar prior art elements according to their established functions would have conveyed a reasonable expectation of success to a person of ordinary skill having common sense at the time of the invention. Accordingly, we find that Appellants have not shown that the Examiner erred in rejecting claim 15 over Yaokum, Graham, and Arora. Appellants do not provide arguments for claims 19, 20, 24, 25, and 29 separate from those of claim 15 (App. Br. 11), and thus, claims 19, 20, 24, 25, and 29 fall with claim 15 over Yaokum, Graham, and Arora. Appellants also do not provide arguments for claims 16-18, 21-23, and 26-28 depending from claims 15, 20, and 25, respectively (id.). Thus, Appellants also have not shown that the Examiner erred in rejecting claims 16-18, 21-23, and 26-28 over Yaokum, Graham, and Arora, in further view of Holmberg. Appeal 2012-012422 Application 10/042,799 8 V. CONCLUSION AND DECISION The Examiner’s rejections of claims 15-29 under 35 U.S.C. § 103(a) are affirmed. 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)(iv). AFFIRMED Vsh