Sam Eric. Mcmurry

Patent Trials and Appeals BoardAug 23, 2019

14166790 - (D) (P.T.A.B. Aug. 23, 2019)

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. 14/166,790 01/28/2014 Sam Eric McMurry 1322/496 3592 116095 7590 08/23/2019 Oracle-Jenkins, Wilson, Taylor & Hunt, P.A. 3015 Carrington Mill Boulevard Suite 550 Morrisville, NC 27560 EXAMINER SOWA, TIMOTHY JOHN ART UNIT PAPER NUMBER 2448 NOTIFICATION DATE DELIVERY MODE 08/23/2019 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): usptomail@jwth.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SAM ERIC MCMURRY ____________ Appeal 2018-009217 Application 14/166,790 Technology Center 2400 ____________ Before DENISE M. POTHIER, JENNIFER L. McKEOWN, and JOYCE CRAIG, Administrative Patent Judges. McKEOWN, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 1–4, 6–12, and 14–20. Claims 5 and 13 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 According to Appellant, the real party in interest is Oracle International Corporation. App. Br. 3. Appeal 2018-009217 Application 14/166,790 2 STATEMENT OF THE CASE Appellant’s disclosed and claimed invention relates to “[m]ethods, systems, and computer readable media for managing network virtualization.” Abstract. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A method for managing network virtualization, the method comprising: at a virtualization orchestrator comprising a hardware processor and for managing virtual networks within a telecommunications network: receiving virtualization related data from an information concentrator for collecting and analyzing information from a plurality of computer information sources, wherein receiving virtualization related data comprises receiving an information concentrator-supplied virtualization operation from the information concentrator, the information concentrator-supplied virtualization operation specifying a command to the virtualization orchestrator for allocating additional network resources to compensate for an upcoming network overload of the telecommunications network in operation; in response to receiving the information concentrator- supplied virtualization operation, reviewing a current state and topology of the telecommunications network in operation; disregarding, as a result of reviewing the current state and topology of the telecommunications network in operation, the command specified by the information-concentrator-supplied virtualization operation by refraining from allocating the additional network resources to compensate for the upcoming network overload; determining, for a distributed computing system executing a plurality of telecommunications nodes in a virtualized environment for implementing the telecommunications network, a network virtualization operation based on the received virtualization related data; and performing the network virtualization operation by adjusting one or more network resources for the Appeal 2018-009217 Application 14/166,790 3 telecommunications nodes in the virtualized environment on the distributed computing system. THE REJECTION The Examiner rejected claims 1–4, 6–12 and 14–20 under 35 U.S.C. § 103 as unpatentable over Barak (US 2014/0026231 Al; Jan. 23, 2014) and Parker (US 2013/0124712 Al; May 16, 2013). Final Act. 4–4. ANALYSIS Based on the record before us, we are not persuaded that the Examiner erred in concluding that claims 1–4, 6–12 and 14–20 are unpatentable over Barak and Parker. Appellant contends that Barak and Parker combined fail to teach or suggest, “disregarding, as a result of reviewing the current state and topology of the telecommunications network in operation, the command specified by the information-concentrator-supplied virtualization operation by refraining from allocating the additional network resources to compensate for the upcoming network overload” recited in claim 1. App. Br. 5. According to Appellant, the Examiner for this limitation erroneously relies on the topology manager and load balancing component, which are “separate functional components” of Parker’s electronic cloud device. App. Br. 6. For example, Appellant explains that “[a]s shown in Figure 4, [Parker’s] [elastic cloud network (ECN)] device 120 includes, as separate functional components, a topology manager 420 and a session delivery network (SDN) component 400 [which includes a load balancing component].” App. Br. 7. Appellant further explains that while Parker’s topology manager may alert a user if there is insufficient resources, Parker’s topology manager is “a user- Appeal 2018-009217 Application 14/166,790 4 facing function for interfacing with a user in a user interface” and, thus, this does not disregard a command “by refraining from allocating the additional resources.” Reply Br. 2–3. Appellant also maintains that Barak does not cure the deficiencies of Parker. In particular, Barak’s providing a security recommendation is not the same as disregarding a command. App. Br. 9. We find this argument unpersuasive. Even if Parker describes different functional components, each of these functional components works together within the ECN device. See Parker 17 (noting that the ECN device includes the session delivery network (SDN) component and topology manager). As the Examiner explains, the ECN device performs global and local load balancing to distribute workloads for avoiding network overloads and to provide notification when insufficient resources are available for delivering the network resources requested. Ans. 4. Moreover, the Examiner notes that the rejection relies on the combination of Parker and Barak, while Appellant argues the Parker and Barak references individually. See, e.g., Ans. 4–5. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Appellant additionally argue that a skilled artisan would not have combined Barak and Parker because Barak’s “transmitting a message to exclude a candidate virtual machine” is incompatable with the user-facing alert. Namely, “[t]he security controller’s function, as described in Barak, is for computer control of virtual machines, whereas the ‘alert’ function of Parker’s topology manager is user-facing for interfacing with a user in a user interface.” Reply Br. 3. Notably, however, Appellant fails to respond Appeal 2018-009217 Application 14/166,790 5 persuasively to the Examiner’s provided reasons to combine Barak and Parker. In particular, the Examiner determines that a skilled artisan would be motivated to combine Parker and Barak to “to implement virtual telecom distributed network computing with nodes.” Final Act. 7 (citing Parker ¶¶ 49, 79, 87–88, 109–111, 176, and 178). Moreover, as the Examiner explains, the rejection relies on Barak as receiving the recited operational instruction and then combines Barak’s receiving instructions with Parker’s general teaching of disregarding commands, “in the sense that the network topology manager, having determined the state of available network resources, provides notification that insufficient resources would be available to provide the network resources requested.” Ans. 5. As such, based on the record before us, we are not persuaded that the Examiner erred in finding that Barak and Parker teach or suggest the disputed disregarding limitation. With respect to claims 4, 12, and 20, Appellant contends Parker’s reviewing databases “to determine likely times when a network will experience peak demand” does not teach or suggest “detecting a characteristic pattern” in the received data and that peak demand is not network overload conditions. App. Br. 10–11; Reply Br. 4–5. We disagree. For example, a skilled artisan would have understood that determining peak demand predictions at least suggests detecting a characteristic pattern of when network overload conditions will occur. As the Examiner points out, Parker’s ECN device “manage[s] the risks involved with potential network overload conditions by adjusting the network topology to meet peak demand accordingly.” Ans. 5–6. As such, we are not persuaded of error in the Examiner’s rejection of claims 4, 12, and 20. Appeal 2018-009217 Application 14/166,790 6 Accordingly, based on the record before us, we are not persuaded that the Examiner erred in rejecting claims 1–4, 6–12 and 14–20 as unpatentable over Barak and Parker. DECISION We affirm the Examiner’s decision to reject claims 1–4, 6–12, and 14–20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED