JPMorgan Chase Bank, N.A.

Patent Trials and Appeals Board

Apr 5, 2021

2019006914 (P.T.A.B. Apr. 5, 2021)

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.
14/645,759 03/12/2015 Todd Schmitter 052227.000905 6238
162030 7590 04/05/2021
JPMorgan Chase / Greenberg Traurig
77 West Wacker Drive
Suite 3100
Chicago, IL 60601
EXAMINER
FAN, JOHN
ART UNIT PAPER NUMBER
2454
NOTIFICATION DATE DELIVERY MODE
04/05/2021 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):
cadanoc@gtlaw.com
clairt@gtlaw.com
gtipmail@gtlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TODD SCHMITTER, JONATHAN ROCKS,
MATTHEW KUSNIERZ, KAMAL TRIPATHI, DEAN MCCANN,
SHANE OSAKI, PETER NEWMAN, JEON A. CALHOUN,
EMIL G. DATCU, JAMES P. LOGSDON, MUNISH KUMAR,
SHANKAR KUMAR, and BHUPENDRA KUMAR SINGH
Appeal 2019-006914
Application 14/645,759
Technology Center 2400
Before JOSEPH L. DIXON, ERIC S. FRAHM, and
CATHERINE SHIANG, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–5, 7–15, and 17–24. See Final Act.
1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42 (2018). Appellant identifies the real party in interest as JPMorgan
Chase Bank, NA. Appeal Br. 1.
Appeal 2019-006914
Application 14/645,759
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CLAIMED SUBJECT MATTER
The claims are directed to a systems and methods for intelligent
workload routing. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A system for intelligent workload routing, comprising:
a first processing platform having a first dynamic
characteristic;
a second processing platform having a second dynamic
characteristic; and
a workload router in communication with the first
processing platform and the second processing platform,
wherein:
the workload router receives a first status message
comprising the first dynamic characteristic from the first
processing platform;
the workload router receives a second status message
comprising the second dynamic characteristic from the second
processing platform;
the workload router receives a message comprising a
workload request comprising a workload request characteristic;
the workload router applying a plurality of routing rules to
the workload request and assigning a weight to the outcome of
each routing rule, wherein each outcome identifies the first
processing platform or the second processing platform; and
the workload router routes the workload request to one of
the first processing platform and the second processing platform
based on the workload request characteristic, the first dynamic
characteristic, the second dynamic characteristic, and a weighted
average of the weighted outcomes of the routing rules.
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Canright US 2006/0031576 A1 Feb. 9, 2006
Lake US 2006/0168194 A1 July 27, 2006
Nagpal US 2012/0078643 A1 Mar. 29, 2012
Ristock US 2014/0146961 A1 May 29, 2014

REJECTIONS
1. Claims 1–4, 7–11, 13–15, and 17–24 stand rejected under 35
U.S.C. § 103 as being unpatentable over Ristock, Nagpal, and
Canright. Final Act. 4.
2. Claims 5 and 12 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Ristock, Nagpal, Canright, and Lake. Final Act.
19.
OPINION
Claims 1–5, 7–15 and 17–24
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”). After considering the
argued claims and each of Appellant’s arguments, we are not persuaded of
reversible error in the appealed rejections.
Appellant does not make separate arguments in support of
patentability of any particular claim or claim grouping. Accordingly, the
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Application 14/645,759
4
claims subject to each ground of rejection will stand or fall with claim 1.
See 37 C.F.R. § 41.37(c)(iv). Our decision with regard to Rejection 1 is
dispositive for Rejection 2.
“On appeal to the Board, an applicant can overcome a rejection by
showing insufficient evidence of prima facie obviousness or by rebutting the
prima facie case with evidence of secondary indicia of nonobviousness.” In
re Kahn, 441 F.3d 977, 985–86 (Fed. Cir. 2006) (quoting In re Rouffet, 149
F.3d 1350, 1355 (Fed. Cir. 1998)).
[T]he examiner bears the initial burden, on review of the prior
art or on any other ground, of presenting a prima facie case of
unpatentability. If that burden is met, the burden of coming
forward with evidence or argument shifts to the applicant.
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
“A rejection based on section 103 clearly must rest on a factual basis.
. . .” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office
has the initial duty of supplying the factual basis for its rejection. It may not
. . . resort to speculation, unfounded assumptions or hindsight reconstruction
to supply deficiencies in its factual basis.” Id.
“Obviousness may not be established using hindsight or in view of the
teachings or suggestions of the inventor.” Para-Ordnance Mfg. v. SGS
Importers Int’l, 73 F.3d 1085, 1087 (Fed. Cir. 1995) (citing W.L. Gore &
Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1551, 1553 (Fed. Cir. 1983)).
“The mere fact that the prior art may be modified in the manner suggested
by the Examiner does not make the modification obvious unless the prior art
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Application 14/645,759
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suggested the desirability of the modification.” In re Fritch, 972 F.2d 1260,
1266 (Fed. Cir. 1992) (citing In re Gordon, 733 F.2d 900, 902 (Fed. Cir.
1984)). “It is impermissible to use the claimed invention as an instruction
manual or ‘template’ to piece together the teachings of the prior art so that
the claimed invention is rendered obvious.” Fritch, 972 F.2 at 1266 (citing
In re Gorman, 933 F.2d 982, 987 (Fed. Cir. 1991)).
With respect to representative independent claim 1, Appellant argues
that the Ristock reference fails to disclose "the workload router routes the
workload request ... based on the workload request characteristic." Appeal
Br. 4–5. Appellant further argues that the Nagpal reference does not
disclose "the workload router receives a message comprising a workload
request comprising a workload request characteristic." Appeal Br. 5–6.
Appellant also argues that the Canright reference is non-analogous art where
the claims are directed systems and methods for intelligent workload
routing, in which it considers workload characteristics, dynamic
characteristics of processing platforms, and a weighted average of outcomes
of the routing rules to select one of the processing platforms to process the
workload request. Appeal Br. 6. Appellant argues that the problem that is
being solved is the selection of the proper processing platform to process the
workload request. Appeal Br. 6.
Appellant contends that the Canright reference proposes a solution to
selecting a transmission path is neither in the same field of endeavor as the
claims, nor is it reasonably pertinent to the problem faced by the inventors -
the selection of a processing platform to process a workload. Appeal Br. 6.
Appellant further argues that the proposed combination does not disclose all
of the claimed limitations of independent claim 9 (rather than independent
claim 1). Appeal Br. 7. Specifically, Appellant contends that the
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combination does not disclose the claimed “the workload router applying a
plurality of routing rules to the workload request and assigning a weight to
the outcome of each routing rule, wherein each outcome identifies the first
processing platform or the second processing platform.” Appeal Br. 7;
Reply Br. 4–7. (We interpret this to be an argument to representative
independent claim 1 having similar claim language.) Appellant argues that
the Canright reference is directed to the selection of a transmission path
among nodes, not the selection of the processing platform where in Canright,
the starting point and the destination are known, but the transmission path to
get to the destination is determined using the weighting scheme. Appeal Br.
8.
Appellant argues that the dependent claims rely upon the respective
independent claims for allowability. Appeal Br. 8–9
Finally, Appellant contends that the proposed combination constitutes
improper hindsight. Appeal Br. 9. Appellant contends that the Examiner
alleges that it would have been advantageous to combine Nagpal into
Ristock, but the Examiner fails to explain why the proposed combination is
allegedly better than the system disclosed by Ristock. Appeal Br. 9; Reply
Br. 2–4. Appellant contends that integration of the Nagpal reference into the
Ristock reference would not serve as an advantageous and advanced
enhancement to the Ristock system and would change the principles of
operation. Appeal Br. 9–10.
The Examiner responds to each of Appellant’s contentions and
emphasizes what each of the individual references was relied upon in the
combination in the rejection. Ans. 5–8. The Examiner further explains how
the Canright reference is analogous art and finds that the transmission paths
are a type of “platform” and that the Canright teaches and suggests the use
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of assigning a weighting value to each rule in stochastic routing. Ans. 7–8.
(Canright ¶ 62).
We further note that the Canright reference discloses the avoidance of
congested areas in routing, which give rise to undesirable delay in the
passing of data that considers “latency.” Canright ¶¶ 5, 38. We further note
that Appellant’s Specification in paragraphs 41 and 42 disclose latency
minimizing and monitoring as two of the plural rules in routing. As a result,
we find that the teachings of the Canright reference are reasonably pertinent
to the disclosed and claimed invention of intelligent workload routing.
We find Appellant’s arguments to be conclusory assertions without
supporting explanation or analysis particularly pointing out errors in the
Examiner’s reasoning fall well short of persuasively rebutting the
Examiner's prima facie case of obviousness. See In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). Appellant has not presented substantive
arguments and supporting evidence persuasive of Examiner error. See In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board
reasonably interpreted Rule 41.37 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.”);
37 C.F.R. § 41.37(c)(1)(iv) (“A statement which merely points out what a
claim recites will not be considered an argument for separate patentability of
the claim.”).
Attorney arguments and conclusory statements that are unsupported
by factual evidence are entitled to little probative value. In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699,
705 (Fed. Cir. 1984); Ex parte Belinne, No. 2009-004693, 2009 WL
2477843, at *3–4 (BPAI Aug. 10, 2009) (informative), available at
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https://www.uspto.gov/sites/default/files/ip/boards/bpai/decisions/inform/fd0
9004693.pdf; see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).
In this case, we find Appellant has not specifically addressed the line
of reasoning provided by the Examiner, and we find Appellant’s general
arguments pertaining to hindsight and that Nagpal would not serve as an
advantageous and advanced enhancement to the Ristock system and would
change the principles of operation to be unsupported attorney argument. As
a result, Appellant’s arguments have not shown error in the Examiner’s
factual findings or conclusion of obviousness of representative independent
claim 1 and claims 2–5, 7–15, and 17–24 not separately argued.
CONCLUSION
The Examiner’s decision rejecting claims 1–5, 7–15, and 17–24 is
AFFIRMED.

Appeal 2019-006914
Application 14/645,759
9
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 7–11,
13–15,
17–24
103 Ristock, Nagpal, Canright 1–4, 7–11,
13–15,
17–24

5, 12 103 Ristock, Nagpal, Canright,
Lake
5, 12
Overall
Outcome
1–5, 7–15,
17–24

RESPONSE
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.
§ 1.136(a)(1)(iv).
AFFIRMED