Ex Parte Zhao et al

Patent Trial and Appeal BoardSep 25, 2012

10017495 (P.T.A.B. Sep. 25, 2012)

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. 10/017,495 12/14/2001 Cuie Zhao BOR-160 5644 47604 7590 09/26/2012 DLA PIPER LLP US P. O. BOX 2758 RESTON, VA 20195 EXAMINER TRUONG, LECHI ART UNIT PAPER NUMBER 2194 MAIL DATE DELIVERY MODE 09/26/2012 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 CUIE ZHAO, VISHWANATH KESHAVAMURTHY KASARAVALLI, and |VIJAYKUMAR NATARAJAN ____________ Appeal 2010-009028 Application 10/017,4951 Technology Center 2100 ____________ Before JOSEPH L. DIXON, THU A. DANG, and JAMES R. HUGHES, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL 1 Application filed on December 14, 2001. The present Application claims benefit from U.S. Provisional Application No. 60/255,651 filed December 14, 2000. The Real Party in Interest is Borland Software Corporation. (Br. 2.) Appeal 2010-009028 Application 10/017,495 2 STATEMENT OF CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1, 2, 9, 10, and 12-24. Claims 3-8 and 11 are indicated by the Examiner as including allowable subject matter and are therefore not before us. (Br. 2; Ans. 2.) We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Invention The present invention generally relates to the field of distributed object oriented computing and, more particularly, to a method for fault tolerance, load balance and “failover” of CORBA object servers via name service clustering. (Spec. 1, ll. 20-22.)2 Representative Claim Independent claim 1, reproduced below with the key disputed limitations emphasized, further illustrates the invention: 1. A computer implemented method for fault tolerance, load balance and failover of CORBA object servers, comprising the steps of: establishing name service clusters for the object servers which each contain a unique object binding table that contains object server references; in response to a request from a client that invokes a cluster, performing a load balance by having the name service select an object server located in the invoked cluster; appending a cluster component to the invoked cluster to provide failover upon failure of the object server; 2 We refer to Appellants’ Specification (“Spec.”); Appeal Brief (“Br.”) filed June 7, 2006. We also refer to the Examiner’s Answer (“Ans.”) mailed January, 27, 2010. Appeal 2010-009028 Application 10/017,495 3 forwarding a selected object reference to a client upon completion of the load balance; and permitting the client to communicate with the server associated with the selected object reference which was forwarded to the client, wherein the fault tolerance, the load balance and the failover are performed transparently. Rejections on Appeal 1. The Examiner rejects claims 1, 14, 23, and 24 under 35 U.S.C. § 103(a) as being unpatentable over Ben-Shachar (U.S. Patent No. 6,209,018 B1, issued Mar. 27, 2001 (filed Nov, 13, 1997)), and Emens (U.S. Patent No. 6,606,643 B1, issued Aug. 12, 2003 (filed Jan, 4, 2000)). 2. The Examiner rejects claims 2 and 9 under 35 U.S.C. § 103(a) as being unpatentable over Ben-Shachar, Emens, and Java Reflective Broker (Ennio Grasso, Java Reflective Broker, MokaByte No. 14 (December, 1997) available at http://www.mokabyte.it/1997/12/jrbspec.htm last visited on December 25, 2004). 3. The Examiner rejects claims 10, 12, and 13 under 35 U.S.C. § 103(a) as being unpatentable over Ben-Shachar, Emens, and Arno (Arno Schmidmeier, WG: [omniORB] load balancing example, (August 19, 1999) available at http://www.omniorb-support.com/pipermail/omniorb-list/1999- August/013435.html last visited on December 13, 2004.) 4. The Examiner rejects claims 15 and 16 under 35 U.S.C. § 103(a) as being unpatentable over Ben-Shachar, Emens, Rawson (U.S. Patent No. 5,675,795, issued Oct. 7, 1997), and Nelson (U.S. Patent No. 5,452,447, issued Sep. 19, 1995). Appeal 2010-009028 Application 10/017,495 4 5. The Examiner rejects claim 17 under 35 U.S.C. § 103(a) as being unpatentable over Ben-Shachar, Emens, Rawson, Nelson, and Java Reflective Broker. 6. The Examiner rejects claims 18 and 19 under 35 U.S.C. § 103(a) as being unpatentable over Ben-Shachar, Emens, Rawson, Nelson, and Arno. 7. The Examiner rejects claims 20-22 under 35 U.S.C. § 103(a) as being unpatentable over Ben-Shachar, Emens, Rawson, Nelson, and Nessett (U.S. Patent No. 5,742,759, issued Apr. 21, 1998). Grouping of Claims Based on Appellants’ arguments in the Brief, we will decide the appeal on the basis of representative claim 1. See 37 C.F.R. § 41.37(c)(1)(vii). ISSUE Under § 103, did the Examiner err in finding that the cited references would have collectively taught or suggested “permitting the client to communicate with the server associated with the selected object reference which was forwarded to the client, wherein the fault tolerance, the load balance and the failover are performed transparently” (emphasis added), within the meaning of independent claim 1 and the commensurate language of independent claim 15? Appeal 2010-009028 Application 10/017,495 5 FINDINGS OF FACT We adopt the Examiner’s findings in the Answer and the Final Office Action as our own, except as to those findings that we expressly overturn or set aside in the analysis as follows. ANALYSIS Claims 1, 14, 23, and 24 Appellants contend independent claims 1 and 15 are patentable over the cited combinations, because Ben-Shachar, alone or in combination, neither discloses nor suggests the notion of user transparency with respect to load balancing, fault tolerance, and failover. (Br. 5.) Specifically, Appellants contend that “[i]n the present invention, merely invoking the clustered naming service provides a software client[,] the transparent load balancing, fault tolerance and failover of the present invention.” (Br. 5-6 (emphasis added).) We agree with and adopt the Examiner’s findings with respect to claim 1. (Ans. 4.) In addition, we note that Appellants attempt to argue limitations that are not commensurate with the present claim language. For example, as noted above, Appellants argue that Ben-Shachar fails to teach or suggest “user transparency”, and “providing a software client the transparent load balancing . . . .” However, the present claims do not specify to whom or to what the claimed load balancing, fault tolerance and failover are transparent. Therefore, we find Appellants’ arguments unavailing as to the load balancing, fault tolerance, and failover transparency to the user or client. Appeal 2010-009028 Application 10/017,495 6 Moreover, we agree with the Examiner that Ben-Shachar discloses that the “service framework” includes workload balancing and fault tolerance, etc. (Ans. 12; Ben-Shachar, col. 8, ll. 24-25), and “fault tolerance mechanisms performed by the service proxy are completely transparent to the client.” (Ben-Shachar, col. 11, ll. 61-63 (emphasis added).) Therefore, we find that based on the teachings of Ben-Shachar it would have been obvious to one of ordinary skill in the art at the time of Appellants’ invention that the fault tolerance, along with the remaining portions of the “service framework” (workload balancing and failover) would be transparent to the client.3 We also note that Appellants did not file a Reply Brief to rebut the findings and responsive arguments made by the Examiner in the Answer. Based on this record, we conclude that the Examiner did not err in determining that the cited combination of references would have taught or suggested that “the fault tolerance, the load balance and the failover are performed transparently,” as recited in representative claim 1. Accordingly, we affirm the Examiner’s rejection of claim 1 and claims 14, 23, and 24 not separately argued with particularity. (Br. 8.) 3 Section 103 forbids issuance of a patent when “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1734 (2007). Appeal 2010-009028 Application 10/017,495 7 Claims 15-16 As noted above, independent claim 15 is rejected as being unpatentable over Ben-Shachar, Emens, Rawson, and Nelson. Appellants group claim 15 with claim 1 (Br. 5), as fully discussed supra. Accordingly, we affirm the Examiner’s rejections of claim 15 and claim 16 not separately argued with particularity. (Br. 8.) Claims 2, 9, 10, 12, 13, and 17-22 As noted above, claims 2, 9, 10, 12, 13 and 17-22 stand rejected over the Examiner’s cited combinations of references. Appellants did not provide separate arguments for the patentability of these claims. (Br. 8.) Accordingly, we affirm the Examiner’s rejections of claims 2, 9, 10, 12, 13, and 17-22 for the reasons discussed (supra) with respect to claim 1. CONCLUSION OF LAW Appellants have not shown that the Examiner erred in rejecting claims 1, 2, 9, 10, and 12-24 under 35 U.S.C. § 103(a). DECISION We affirm the Examiner’s rejections of claims 1, 2, 9, 10, and 12-24, 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)(1)(iv). AFFIRMED Appeal 2010-009028 Application 10/017,495 8 tkl