Ex Parte Sofka et al

Patent Trial and Appeal Board

Oct 25, 2017

13446512 (P.T.A.B. Oct. 25, 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.
13/446,512 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
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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
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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
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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
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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
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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.
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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.
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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
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