JPMorgan Chase Bank, N.A.Download PDFPatent Trials and Appeals BoardApr 5, 20212019006914 (P.T.A.B. Apr. 5, 2021) 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. 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 2 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. Appeal 2019-006914 Application 14/645,759 3 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 Appeal 2019-006914 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 Appeal 2019-006914 Application 14/645,759 5 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 Appeal 2019-006914 Application 14/645,759 6 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 Appeal 2019-006914 Application 14/645,759 7 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 Appeal 2019-006914 Application 14/645,759 8 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 Copy with citationCopy as parenthetical citation