Ex Parte Sofka et alDownload PDFPatent Trial and Appeal BoardOct 25, 201713446512 (P.T.A.B. Oct. 25, 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. 13/446,512 04/13/2012 Jiri Sofka 82963429 5437 56436 7590 Hewlett Packard Enterprise 3404 E. Harmony Road Mail Stop 79 Fort Collins, CO 80528 EXAMINER MAPAR, BIJAN ART UNIT PAPER NUMBER 2128 NOTIFICATION DATE DELIVERY MODE 10/27/2017 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 JIRI SOFKA, JOSEF TROCH, and MARTIN PODVAL Appeal 2017-005803 Application 13/446,5121 Technology Center 2100 Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and DAVID J. CUTITTAII, Administrative Patent Judges. GALLIGAN, Administrative Patent Judge. DECISION ON APPEAL Introduction Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1—17 and 20, which are all of the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). Claims 18 and 19 have been cancelled. We AFFIRM.2 1 According to Appellants, the real party in interest is Hewlett-Packard Development Company, L.P. Br. 2. 2 Our Decision refers to Appellants’ Appeal Brief filed August 31, 2015 (“Br.”); Examiner’s Answer mailed March 24, 2016 (“Ans.”); and Final Office Action mailed June 10, 2015 (“Final Act.”). Appeal 2017-005803 Application 13/446,512 STATEMENT OF THE CASE Claims on Appeal Claims 1, 7, and 12 are independent claims. Claim 1 is reproduced 1. A method for generating a performance simulation of a real service, comprising: utilizing a processor to execute instructions located on a non-transitory medium for: scheduling a time for responses to be sent based on response time metrics; determining a delay for the responses based on data throughput metrics; sending the responses based on the time and the delay; determining when the real service is unavailable for a performance test to be executed on an application comprising the real service; in response to determining that the real service is unavailable for the performance test, replacing the real service with a virtual service; and determining, based on information related to the sent responses, a performance level of the virtual service that replaces the real service. below: References Abedi Stenzel Balasubramanian Michelsen US 2006/0023659 A1 Feb. 2, 2006 US 2008/0263401 A1 Oct. 23, 2008 US 2010/0333102 A1 Dec. 30, 2010 US 8,112,262 B1 Feb. 7, 2012 2 Appeal 2017-005803 Application 13/446,512 Examiner s Rejection Claims 1—17 and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Balasubramanian, Abedi, Michelsen, and Stenzel. Final Act. 4—23. ANALYSIS 35 U.S.C. § 103(a): Claims 1—4, 6 14, 16, 17, and20 Improper Combination Appellants contend that the Examiner has not provided sufficient reasoning to combine Balasubramanian, Abedi, Michelsen, and Stenzel and, as such, that the Examiner uses the “claim[s] as a template to combine” the references. Br. 5—9, 12. In particular, Appellants argue “[njowhere in Balasubramanian is there any motivating force which would impel one skilled in the art to do what the applicant has done.” Id. at 6. Appellants further argue “one skilled in the art would not be motivated to make the [Examiner’s] combination” because the claimed “delays concern the delays caused by the execution of [remote] services” but Balasubramanian teaches “delays in messages between inter-processor communications.” Id. at 7 (citing Balasubramanian 18). Appellants also argue “there is no motivation to combine” Balasubramanian with Abedi and Michelsen because the features incorporated from Abedi and Michelsen “have no direct bearing on the queueing delays of Balasubramanian,” i.e., do not “solv[e] [Balasubramanian’s] problem of queueing delays.” Br. 7—8. We are not persuaded. The Examiner finds, and we agree, Balasubramanian teaches a message sending system that considers network delays in order to send messages by a scheduled time. Final Act. 4—5 (citing 3 Appeal 2017-005803 Application 13/446,512 Balasubramanian || 66, 71, 79); Ans. 22. The Examiner further finds, and we agree, Abedi teaches simulating a message sending system to determine the system’s performance. Final Act. 5—6 (citing Abedi Tflf 125, 133, 210); see Abedi 30, 77, 177. The Examiner combines Balasubramanian’s and Abedi’s disclosures to teach testing and simulating the message sending system in order to determine the system’s performance. Final Act. 6; Ans. 23. The Examiner further finds (Final Act. 3, 6—7; Ans. 26), and we agree, Michelsen teaches a “testing driver 425 causes database requests generated by application under test 410 to be provided to virtual database service 470 instead of database 430” (Michelsen 15:25—28). The Examiner combines Balasubramanian’s and Michelsen’s disclosures to teach testing the system using a virtual service that replaces a real service. Final Act. 7; Ans. 23. Appellants’ argument that the Examiner has not provided sufficient reasoning to combine the references is not persuasive. Here, the Examiner supports the combination of references with “articulated reasoning [having] some rational underpinning to support the legal conclusion of obviousness.” KSR Inti Co. v. Teleflex Inc., 550 U. S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Specifically, we agree with the Examiner that one of ordinary skill in the art would have been motivated to combine Balasubramanian with Abedi in order to “determin[e] and characteriz[e] the behavior of a system under a variety of conditions and influences through simulation.” Final Act. 6; Ans. 23. We further agree with the Examiner that one of ordinary skill in the art would have been motivated to combine Balasubramanian with Michelsen in order to “test[] . . . software applications using services that may not otherwise be 4 Appeal 2017-005803 Application 13/446,512 available, or [are] much more expensive, to access.” Final Act. 7. Indeed, Michelsen itself supports the Examiner’s motivation to simulate a system. Michelsen 1:14—37. In particular, Michelsen discloses difficulties in performing tests of actual resources and states that “it is desirable to be able to test the application under test in a manner that avoids interacting with the actual constrained service.” Id. Further, Appellants’ arguments that “[njowhere in Balasubramanian is there any motivating force” to virtualize real services (Br. 6), that “one skilled in the art would not be motivated to make the combination” because Balasubramanian’s delays are not “delays caused by the execution of [remote] services” (id. at 7), and that “there is no motivation to combine” Abedi and Michelsen with Balasubramanian because Abedi and Michelsen do not “solve” Balasubramanian’s queueing delay issue (id. at 7—8) are not persuasive. Appellants’ argument that Balasubramanian itself does not provide motivation for the combination (id. at 6) is not persuasive because the teaching, suggestion, or motivation standard is not required in determining obviousness under KSR, 550 U.S. at 418. Rather, as discussed supra, the conclusion of obviousness must be supported by “articulated reasoning with some rational underpinning.” Id. But Appellants’ arguments do not address the Examiner’s stated reasons for combining Abedi and Michelsen with Balasubramanian, namely, “determining and characterizing the behavior of a system under a variety of conditions and influences through simulation” (Final Act. 6; Ans. 23) and “testing . . . software applications using services that may not otherwise be available, or [are] much more expensive, to access.” (Final Act. 7; Ans. 23). Instead, Appellants assert no motivation exists to combine the references without 5 Appeal 2017-005803 Application 13/446,512 addressing the Examiner’s articulated reasoning. Because the Examiner provides a reason to combine the references with rational underpinning, we disagree with Appellants that the Examiner engages in improper hindsight by using the “claim[s] as a template” (see Br. 6, 9). Additionally, we need not address Appellants’ arguments directed to Stenzel (see Br. 6, 8—9) because the features the Examiner incorporates from Stenzel are features the Examiner already finds Michelsen teaches. Ans. 25; see Final Act. 6—7. Specifically, the Examiner finds “Stenzel teaches [the] virtual service that replaces the real service” (Final Act. 7 (citing Stenzel 127, Fig. 2)), but the Examiner also finds Michelsen teaches replacing a real service with a virtual service (Final Act. 6—7 (citing Michelsen 15:30-34); Ans. 25 (“both the Michelsen and Stenzel references teach the replacement of a real service with a virtual service.”). Accordingly, we need not address the Examiner’s incorporation of Stenzel because Michelsen teaches the incorporated features of Stenzel, i.e., replacement of a real service with a virtual service. Accordingly, we are not persuaded the Examiner erred in combining Balasubramanian, Abedi and Michelsen. “determining that the real service is unavailable . . . replacing the real service with a virtual service ” Appellants contend the Examiner erred in finding the combination of Balasubramanian, Abedi, Michelsen, and Stenzel teaches “determining when the real service is unavailable for a performance test to be executed on an application comprising the real service; in response to determining that the real service is unavailable for the performance test, replacing the real service with a virtual service,” as recited in claim 1 and similarly recited in claims 7 6 Appeal 2017-005803 Application 13/446,512 and 12. Br. 9—11, 12—14. Specifically, Appellants argue “Michelsen does not have a processor determine when the real service is unavailable . . . but rather the determining is instead decided by a user independent of whether the real service is available or not.” Id. at 10. Additionally, Appellants argue neither Abedi nor Stenzel replaces a real service with a virtual service. Id. at 9—11. We are not persuaded. As discussed supra, we agree with the Examiner’s finding (Final Act. 3, 6—7; Ans. 26) that Michelsen teaches a “testing driver 425 causes database requests generated by application under test 410 to be provided to virtual database service 470 instead of database 430” (Michelsen 15:25—34). The Examiner further finds, and we agree, that Michelsen’s system is implemented by a computing device having a processor. Ans. 26; see Michelsen 14:45—56. Appellants’ argument that Michelsen’s computer processor does not determine that a real service is unavailable because a “user selects database 430 for virtualization” (Br. 10 (citing Michelsen 14:62—64, 66—67)) is not persuasive. Even if we were to agree with Appellants that a user selects the option to virtualize a database, Michelsen’s computing system determines its actual database service is unavailable based on an indicator provided in driver management information. In particular, Michelsen’s “driver manager 450 update[s] the driver management information for that system to indicate that requests being sent to database driver 435 should actually be sent to testing driver 425.” Michelsen 15:25—34; see Michelsen Fig. 4. As such, the indicator in driver management information causes all requests to be sent to the testing driver so the real database service is unavailable to respond to requests. 7 Appeal 2017-005803 Application 13/446,512 Additionally, Appellants’ arguments that Abedi and Stenzel do not teach replacement of a real service with a virtual service (Br. 9—11) are not persuasive because, as discussed supra, the Examiner finds that Michelsen teaches replacing a real database service with a virtualized database service (Final Act. 6—7 (citing Michelsen 15:25—34). Accordingly, we are not persuaded the Examiner erred in finding the references teach or suggest the limitations of claims 1, 7, and 12.3 Therefore, we sustain the rejection of claims 1, 7, and 12 under 35 U.S.C. § 103(a). We likewise sustain the rejection under 35 U.S.C. § 103(a) of claims 2—4, 6, 8—11, 13, 14, 16, 17, and 20, for which Appellants offer no additional persuasive arguments for patentability. See Br. 11, 13—14. 35 U.S.C. § 103(a): Claims 5 and 15 Appellants contend Abedi does not teach “replacing the real service with the virtual service comprises simulating behaviors of the real service,” as recited in claim 5. Br. 11—12. Specifically, Appellants argue “Abedi is not replacing the real service with the virtual (simulated) service but rather is 3 We observe that independent claim 1 recites “sending the responses” and “determining, based on information related to the sent responses, a performance level of the virtual service.” It is unclear, however, whether the virtual service sends the recited responses. Appellants’ description of the claimed invention, “replicat[ing] the delays of actual remote service responses to service requests when testing an application with substituted virtualized services” (Br. 7), implies that the virtual service is sending the responses, but claim 1 does not include language reciting that the responses are sent by the virtual service. Claim 4 recites “the virtual service sends the responses,” implying that claim 1 encompasses a reading in which the responses are not sent by the virtual service. In the event of further prosecution, the Examiner may wish to review the claims for compliance with the definiteness requirement of 35 U.S.C. § 112, second paragraph. 8 Appeal 2017-005803 Application 13/446,512 experimentally determining in the simulated traffic environment how the simulated service compares to other competing techniques operating] in that same simulated traffic environment.” Id. at 12. We are not persuaded. As discussed supra, Appellants’ argument that “Abedi is not replacing the real service with the virtual (simulated) service” (Id. at 12) does not address the Examiner’s finding that Michelsen teaches the replacement of a real service with a virtual service (Final Act. 6—7; Ans. 29). Accordingly, we are not persuaded the Examiner erred in finding the references teach or suggest the limitations of claim 5. Appellants also assert claim 15 is “separately patentable based on the reasons given for claim 5 above.” Br. 14. As such, we are not persuaded of Examiner error with respect to claim 15. Therefore, we sustain the rejection of claims 5 and 15 under 35 U.S.C. § 103(a). DECISION We affirm the Examiner’s decision to reject claims 1—17 and 20 under 35 U.S.C. § 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 41.50(f). AFFIRMED 9 Copy with citationCopy as parenthetical citation