International Business Machines Corporation

Patent Trials and Appeals Board

Sep 23, 2021

2020003485 (P.T.A.B. Sep. 23, 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.
14/754,675 06/29/2015 Kyle G. BROWN SVL920150051US1 3412
45725 7590 09/23/2021
Walder Intellectual Property Law PC
445 Crestover Circle
Richardson, TX 75080
EXAMINER
RIFKIN, BEN M
ART UNIT PAPER NUMBER
2198
MAIL DATE DELIVERY MODE
09/23/2021 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 KYLE G. BROWN and SAMIR A. NASSER
___________

Appeal 2020–003485
Application 14/754,675
Technology Center 2100

____________

Before CAROLYN D. THOMAS, CARL W. WHITEHEAD JR. and
JASON V. MORGAN, Administrative Patent Judges.

WHITEHEAD JR., Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1
Appellant2 is appealing the final rejection of claims 1, 3–8, 10–15 and
17–21 under 35 U.S.C. § 134(a). See Appeal Brief 4–23. Claims 1, 8 and

1 Rather than reiterate Appellant’s arguments and the Examiner’s
determinations, we refer to the Appeal Brief (filed November 5, 2018), the
Reply brief (filed April 5, 2019), the Final Action (mailed June 4, 2018) and
the Answer (mailed February 8, 2019), for the respective details.

2 Appellant refers to “applicant” as defined in 37 C.F.R. 1.42(a). (“The word
‘applicant’ when used in this title refers to the inventor or all of the joint
inventors, or to the person applying for a patent as provided in §§ 1.43, 1.45,
or 1.46.”). Appellant identifies International Business Machines
Corporation as the real party in interest. Appeal Brief 2.

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15 are independent. Claims 2, 9 and 16 are cancelled. See Final Action 2.
We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Introduction
“Middleware software solutions typically depends on resources of a
runtime environment with well-defined capacities. Such solutions serve a
variety of requests, and each request will require a number of runtime
environment resources engaged in a certain sequence to fulfill the request. . .
However, forwarding the request to a software runtime environment that is
experiencing a problem with a critical resource may make the problem
worse.” Specification ¶1. As an example, “the request may require memory
beyond the physical capacity of the runtime environment. If this request is
forwarded to the runtime environment, it will impact other requests being
fulfilled.” Specification ¶1.
According to one embodiment of the present invention, in
filtering requests to be forwarded to a runtime environment, a
filtering apparatus intercepts a new runtime request for the
runtime environment and determines execution paths that may
be traversed by the runtime request when executed in the runtime
environment. The filtering apparatus assigns a probability of
traversal by the runtime request to each of the execution paths
and identifies at least one given execution path that reference a
stressed resource of the runtime environment.
Specification 2.
Representative Claim3 (disputed limitations emphasized)
1. A method, in a data processing system, for filtering requests to be forwarded
to a runtime environment comprising:

3 Appellant does not argue the claims individually. See Appeal Brief 12
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intercepting, a filtering apparatus the processing system, a runtime request
before the runtime request enters the runtime environment, wherein the runtime
environment comprises a plurality of resources and wherein one or more of the
resources in the plurality of resources may be utilized to execute the runtime
request;
determining, by the filtering apparatus, one or more execution paths that
may be traversed within the runtime environment, wherein each execution path
in the one or more execution paths comprises at least one difference in resources
utilized;
assigning, by the filtering apparatus, a probability of traversal to each
execution path in the one or more execution paths;
identifying, by the filtering apparatus, at least one execution path of the
one or more execution paths that references a stressed resource of the runtime
environment;
based on the probabilities assigned to the at least one execution path,
determining, by the filtering apparatus, whether or not to block the runtime
request from being sent to the runtime environment;
in response to determining that the probability assigned to the at least one
execution path exceeds a configured threshold, blocking, by the filtering
apparatus, the runtime request from being sent to the runtime environment; and

(“Appellants respectfully submit that the alleged combination of
Colwell and Chow fails to teach or render obvious the features of claims 1,
8, and 15,”). Accordingly, we select independent claim 1 as representative.
See 37 C.F.R. § 41.37(c)(1)(iv) (“When multiple claims subject to the same
ground of rejection are argued as a group or subgroup by appellant, the
Board may select a single claim from the group or subgroup and may decide
the appeal as to the ground of rejection with respect to the group or subgroup
on the basis of the selected claim alone.”).

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in response to determining that the probability assigned to the at least one
execution path does not exceed the configured threshold, sending, by the
filtering apparatus, the runtime request to runtime the environment.

References
Name4 Reference Date
Chow “Models for Dynamic Load
Balancing in a Heterogeneous
Multiple Processor System,” IEEE
Transactions on Computers, Volume
C-28, Number 5
May 1979
Colwell US 4,833,599 May 23, 1989
Moreno US 5,951,674 September 14, 1999
Chockler US 2009/0106737 A1 April 23, 2009
Ide US 2011/0313957 A1 December 22, 2011

Rejections on Appeal
Claims 1, 7, 8, 14, 15 and 20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Colwell and Chow. Final Action 4–7.
Claims 3, 4, 10, 11, 17 and 21 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Colwell, Chow and Moreno. Final Action 7–9.
Claims 5, 12 and 18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Colwell, Chow and Ide. Final Action 9–10.
Claims 6, 13 and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Colwell, Chow and Chockler. Final Action 10–11.

4 All reference citations are to the first named inventor only.

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ANALYSIS
The Examiner finds that Colwell teaches, ‘“A runtime request before
the runtime request enters the runtime environment’ (C10, particularly L61–
68; C11, Ll–L21; EN: this denotes the system controlling executing of
programs and delaying or redirecting onto different resources as needed).”
Answer 5.
Appellant contends:
Colwell is merely assigning a priority code to each cluster and
utilizing the bus “usage” code, the integer processor of a cluster
is advised only of those integer load buses which are being used
by integer processors of higher priority. However, nowhere at
any time does Colwell look at the runtime environment in which
the program (the runtime request) will be executed in and not the
runtime request itself. That is, the instant claims recite
determining one or more execution paths that may be traversed
within the runtime environment, where each execution path in
the one or more execution paths comprises at least one difference
in the resources utilized.
Appeal Brief 8–9; see Colwell column 11, lines 1–21.
We find Appellant’s argument persuasive of Examiner error. Colwell
discloses, “While the controller avoids, by a ‘knowledge’ of the structure
and availability of the hardware configuration, the situation in which data is
lost, it does not and cannot predict with certainty the data flow sources and
destinations and the specific buses required at each machine cycle.” Colwell
column 10, lines 61–66. Colwell further discloses that “through a
prioritization of the buses and hardware,” “errors due to the simultaneous
requirements of two sources can be avoided because of inadequate bus
availability, the apparatus, through the compiler, does not dictate which
buses will be employed at a particular machine cycle.” Colwell column 10,
lines 66–68; column 11, lines 1–4. Colwell does not support the Examiner’s
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findings that Colwell teaches, “A runtime request before the runtime request
enters the runtime environment,” as required by claim 1. See Answer 5, 12;
Appeal Brief 8–9.
The Examiner determines that Colwell fails to explicitly disclose
limitations:
“Assigning, by the filtering apparatus, a probability of traversal
to each of the one or more execution paths”, “Based on the
probabilities assigned to the at least one given execution path”,
and “In response to determining that the probability assigned to
the at least one execution path exceeds a configured threshold,
blocking, by the filtering apparatus, the runtime request from
being sent to the runtime environment; and in response to
determining that the probability assigned to the at least one
execution path does not exceed the configured threshold, sending
by the filtering apparatus, the runtime request to the runtime
environment.”
Answer 6.
The Examiner finds Chow discloses on page 355, paragraph 1 all of
the claim limitations not addressed by Colwell. See Answer 6. The
Examiner determines that Chow teaches the “assigning, by the filtering
apparatus” and the “based on the probabilities assigned” limitations. Answer
6 (“Pg.355, particularly C1, paragraph 1; EN; this denotes having multiple
processors for execution (i.e. multiple execution paths), and choosing them
based upon a probability”). The Examiner further determines that Chow
teaches the “in response to determining that the probability assigned to the at
least one execution path” limitation. Answer 6 (“The probability is the
threshold, when it is met, the command is sent there, when it is not it is sent
elsewhere (i.e. blocked)”).
It is noted that in the rejection, the Examiner does not indicate which
paragraph on page 355 of Chow is considered to be paragraph 1 because the
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first set of sentences on page 355 is actually a continuation of a paragraph
from page 354. Furthermore, the Examiner merely recites the claim
limitations and summarily finds Chow teaches the limitations without
indicating where Chow allegedly teaches the limitations further making it
difficult to ascertain which paragraph on page 355 the Examiner is
referencing. See Answer 6. However, in responding to Appellant’s
arguments from the Appeal Brief, the Examiner provides the following
clarification, “The Chow reference was brought in to show that it was known
to one of ordinary skill in the art to use probabilities to determine execution
paths (see Chow, Pg.354, C2, last paragraph; Pg.355, C1, first paragraph).”
Answer 14.
Appellant acknowledges that “Chow determines probabilities ahead of
time, [however] the probabilities are not utilized by Chow until the job (i.e. a
runtime Request) has already entered the system. Reply Brief 6. Appellant
contends, “Chow distributes jobs that are entering the system to one of a set
of processor, each processor i with a probability I, based on a routing
decision that is based on the outcome of an independent trial that determined
the probabilities.” Reply Brief 6. Chow discloses, “An arriving job is
routed to processor i with probability P; where the routing decision is based
on the outcome of an independent trial.” Chow, page 355, column 1, lines
3–6. Appellant argues, that “In contradistinction, the present invention
determines whether or not to block the runtime request i.e. a runtime
request that has been intercepted before [ ] it enters the runtime
environment as per the first feature of the independent claims, from being
sent to the runtime environment based on the probabilities assigned to the at
least one execution path.” Appeal Brief 8.
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We find Appellant’s argument persuasive of Examiner error because
while Chow uses probability to direct a job to a processor, Chow does not
address the noted deficiencies of Colwell, namely providing “a runtime
request before the runtime request enters the runtime environment,” as
recited in claim 1. Accordingly, we reverse the Examiner’s obviousness
rejection of independent claim 1, as well as independent claims 8 and 15,
commensurate in scope. We also reverse the Examiner’s obviousness
rejections of dependent claims 3–7, 10–14 and 17–21.

CONCLUSION
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1, 7, 8, 14, 15,
20
103 Colwell, Chow 1, 7, 8, 14,
15, 20
3, 4, 10, 11,
17, 21
103 Colwell, Chow,
Moreno
3, 4, 10, 11,
17, 21
5, 12, 18 103 Colwell, Chow, Ide 5, 12, 18
6, 13, 19 103 Colwell, Chow,
Chockler
6, 13, 19
Overall
Outcome
1, 3–8, 10–
15, 17–21

REVERSED