VMware, Inc.

Patent Trials and Appeals Board

Nov 17, 2021

2020006295 (P.T.A.B. Nov. 17, 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.
15/828,133 11/30/2017 Ashot Nshan Harutyunyan D643 9471
152606 7590 11/17/2021
Olympic Patent Works PLLC
4979 Admiral Street
Gig Harbor, WA 98332
EXAMINER
KUDIRKA, JOSEPH R
ART UNIT PAPER NUMBER
2114
MAIL DATE DELIVERY MODE
11/17/2021 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 ASHOT NSHAN HARUTYUNYAN, ARNAK POGHOSYAN,
and NAIRA MOVSES GRIGORYAN

Appeal 2020-006295
Application 15/828,133
Technology Center 2100
Before ELENI MANTIS MERCADER, JOHNNY A. KUMAR, and
NORMAN H. BEAMER, Administrative Patent Judges.

KUMAR, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 5, 8, 9, 13, 16, 17, 21, and 24, which constitute all the claims
pending in this application. Claims 2–4, 6, 7, 10–12, 14, 15, 18–20, 22, and
23 have been indicated to contain allowable subject matter. Final Act. 10.
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). According to Appellant, the real party in interest in this
appeal is VMWARE, INC. See Appeal Br. 1.
Appeal 2020-006295
Application 15/828,133

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STATEMENT OF THE CASE 2
Introduction
Appellant’s claimed subject matter relates “to automated
computational systems and methods to classify and troubleshoot problems in
distributed computing systems”. Spec. ¶ 1.
Illustrative Claim 9
9. A system to classify and troubleshoot problems in
information technology systems and services the system
comprising:
one or more processors:
one or more data-storage devices; and
machine-readable instructions stored in the one or more
data-storage devices that when executed using the one or more
processors control the system to perform operations
comprising:
generating an alert when real-time key performance
indicator (“KPI”) data used to monitor an IT system or service
violates a KPI threshold, the KPI threshold violation indicating
a problem in the IT system or service:
determining a real-time event-type distribution from
event messages generated by event sources associated with the
IT system or service:
comparing the real-time event-type distribution with
historical event-type distributions recorded in a historical record
of KPI aberrations in previously recorded KPI data of the IT
system or service to identify a problem type of a historical
event-type distribution closest to the real-time event-type
distribution; and
when the problem type is identified determining a
remedial action associated with the problem type that when
executed remedies the problem identified by the problem type.

2 We herein refer to the Final Office Action, mailed January 15, 2020 (“Final
Act.”); Appeal Brief, filed June 15, 2020 (“Appeal Br.”); the Examiner’s
Answer, mailed July 8, 2020 (“Ans.”); and Reply Brief, filed September 8,
2020 (“Reply Br.”).
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Application 15/828,133

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Appeal Br. 20–21 (Claims App.) (disputed claim limitations emphasized).

REJECTION
Claims 1, 5, 8, 9, 13, 16, 17, 21, and 24 are rejected under 35 U.S.C.
§ 102(a)(1) and as being anticipated by Nair (US 2017/0310542 A1, pub.
Oct. 26, 2017).

ISSUES AND ANALYSIS
We have considered all of Appellant’s arguments and any evidence
presented. Throughout this opinion, we give the claim limitations the
broadest reasonable interpretation (“BRI”) consistent with the Specification.
See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). We highlight and
address specific findings and arguments for emphasis in our analysis below.

Rejection under 35 U.S.C. § 102(a) of Claim 9
Dispositive Issue: Under 35 U.S.C. § 102, did the Examiner err by
finding that Nair expressly or inherently discloses or describes the following
disputed limitation of claim 9 “determining a real-time event-type
distribution from event messages generated by event sources associated with
the IT system or service”? Appeal Br. 20, 21 (Claims App.) (emphasis
added).3
A claim is anticipated only if each and every element as set forth in
the claims is found, either expressly or inherently described in a single prior

3 Independent claims 1 and 17 recite the disputed limitations of claim 9
using similar language having commensurate scope. Appeal Br. 18, 23
(Claims App.).
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Application 15/828,133

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art reference, and arranged as required by the claim. Verdegaal Bros., Inc. v.
Union Oil. Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987).
In support of the anticipation rejection, the Examiner cites to Nair’s
paragraphs 26, 27, 37, 38, and 69 as purportedly disclosing to determine “a
real-time event-type distribution from event messages” limitation of claim 9
by describing “an event-type distribution is indicated as, e.g., [a] real-time
visualization[s] of [a] key performance indicator set[s] in a time series data
format.” See Final Act. 7 (citing Nair ¶¶ 26, 27, 37, and 38; Figures 2 and
3); and Ans. 10, 11 (citing Nair ¶ 69 and Figure 5).
We do not agree with the Examiner’s findings. “During examination,
‘claims . . . are to be given their broadest reasonable interpretation consistent
with the specification, and . . . claim language should be read in light of the
specification as it would be interpreted by one of ordinary skill in the art.’”
In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)
(citations omitted).
We turn to the Appellant’s Specification to interpret the limitations in
dispute. As noted by Appellant, paragraph 77 of the Specification
“describes a process of determining an event type and explains that an event
type is the textualized information of the event message. Fig. 18 provides an
example of how an event type of an example event message is determined.”
Reply Br. 2 (emphasis added).
As also noted by Appellant, in the Specification, Appellant:
provides illustrations of examples of event-type distributions and
a description of a determining event-type distributions from
event messages in paragraphs [0091]-[0093] and accompanying
Figs. 22-24. Paragraphs [0094]-[0096] of the Application
describe determining a real-time event-type distribution. Anyone
skilled in the art could not possibly read paragraphs [0091]-
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[0096] in view of Figs. 22-24 of the Application and conclude
that the real-time event-type distribution described in second step
of claim 9 can reasonably be interpreted as “data points shown in
a distribution over the USA in e.g., element #512” of Nair. Such
an interpretation of the event-type distribution to include data
points distributed over a map of the USA is not consistent with
how the term event-type distribution is used in the detailed
description of the Application.
Reply Br. 3.

We agree with Appellant as our interpretation of paragraphs 26, 27,
37, 38, and 69 of Nair (Appeal Br. 6–10; Reply Br. 2–5) coincides with that
of Appellant.
In other words, in light of the Specification, for essentially the same
reasons as the Appellant, we agree that Nair’s data streams do not
correspond to the claimed event messages and Nair’s distribution does not
correspond to the claimed real-time event-type distribution.
The Examiner has not shown sufficiently (Ans. 8–11), nor do we find,
that claims 26, 27, 37, 38, and 69 and Figures 2, 3, and 5 of Nair disclose the
disputed features of claim 9.
Accordingly, we do not sustain the Examiner’s anticipation rejection
of claim 9, and independent claims 1 and 17, which recite commensurate
limitations. Because we reverse the rejection of each independent claims 1,
9, and 17 on appeal, we also reverse the rejection of each associated
dependent claim—specifically, claims 5, 8, 13, 16, 21, and 24.
CONCLUSION
The Examiner erred in rejecting claims 1, 5, 8, 9, 13, 16, 17, 21, and
24 under 35 U.S.C. § 102(a) as being anticipated by Nair.

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Application 15/828,133

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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 5, 8, 9,
13, 16, 17,
21, 24
102(a) Nair 1, 5, 8, 9,
13, 16, 17,
21, 24

REVERSED