VMware, Inc.

Patent Trials and Appeals Board

May 11, 2021

2021000183 (P.T.A.B. May. 11, 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.
14/576,190 12/18/2014 Kevan Dunsmore D750 (500104-1910) 3647
152577 7590 05/11/2021
Thomas | Horstemeyer, LLP (VMW)
3200 Windy Hill Road, SE
Suite 1600E
Atlanta, GA 30339
EXAMINER
MILLER, JAMES H
ART UNIT PAPER NUMBER
3694
NOTIFICATION DATE DELIVERY MODE
05/11/2021 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):
docketing@thomashorstemeyer.com
ipadmin@vmware.com
uspatents@thomashorstemeyer.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KEVAN DUNSMORE, DAVID SHIRLEY, PAUL LAPPAS,
ANDREW LEVY, ROBERT KWOK, SEAN HERMANY,
and DAVID ALBRECHT
____________

Appeal 2021-000183
Application 14/576,190
Technology Center 3600
____________

Before MICHAEL C. ASTORINO, NINA L. MEDLOCK, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Our decision references Appellant’s Appeal Brief (“Appeal Br.,”
filed April 9, 2020) and Reply Brief (“Reply Br.,” filed October 5, 2020),
and the Examiner’s Answer (“Ans.,” mailed August 5, 2020), and Final
Office Action (“Final Act.,” mailed November 19, 2019). Appellant
identifies VMware, Inc. as the real party in interest (Appeal Br. 2).
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CLAIMED INVENTION
The claimed invention relates to “a transaction system that allows
developers of an application to designate transactions that allow a
transaction agent to track and monitor the performance of different portions
of the application on various mobile devices” (Spec. 2:2–4).
Claims 1, 10, and 19 are the independent claims on appeal. Claim 1,
reproduced below with bracketed notations added, is illustrative of the
claimed subject matter:
1. A non-transitory machine readable medium storing
a program for monitoring performance of an application, wherein
when executed by at least one processing unit, the program
causes the at least one processing unit to at least:
[(a)] monitor transactions performed by the application
on a mobile device, the transactions comprising interactions
between the mobile device and a set of servers;
[(b)] receive, from the mobile device, transaction data
related to the transactions performed by the application on the
mobile device;
[(c)] receive, from the mobile device, system data related
to system events occurring on the mobile device external to the
transactions occurring within the application;
[(d)] aggregate the transaction data for the time period
according to different time increments, the transaction data for
the time period being stored in a first table aggregated into time
intervals according to a first time increment, and the transaction
data for the time period being further stored in a second table
aggregated into time intervals according to a second time
increment; and
[(e)] generate a user interface that presents, for the
respective transaction: a transaction trace comprising a subset of
the system events, and a timeline comprising a plurality of event
icons corresponding to the subset of the system events, wherein
a particular system event in the transaction trace is highlighted in
response to a cursor being placed over a particular event icon in
the timeline.
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REJECTIONS
Claim 1–10 and 12–20 are rejected under35 U.S.C. § 103 as
unpatentable over Oulu et al. (US 2004/0068560 A1, published April 8,
2004) (“Oulu”), Surazski et al. (US 2012/0023475 A1, published
January 26, 2012) (“Surazski”), and Augustine et al. (US 2009/0241048 A1,
published September 24, 2009) (“Augustine”).
Claim 11 is rejected under 35 U.S.C. § 103 as unpatentable over Oulu,
Surazski, Augustine, and Callahan et al. (US 8,380,576 B2, issued
February 19, 2013) (“Callahan”).
ANALYSIS
Independent Claims 1, 10, and 19 and Dependent Claims 2–9, 12–18, and
20
We are persuaded by Appellant’s argument that the Examiner erred in
rejecting independent claims 1, 10, and 19 under 35 U.S.C. § 103 at least
because Oulu, on which the Examiner relies, does not disclose or suggest
aggregat[ing] the transaction data for the time period according
to different time increments, the transaction data for the time
period being stored in a first table aggregated into time intervals
according to a first time increment, and the transaction data for
the time period being further stored in a second table aggregated
into time intervals according to a second time increment[,]
i.e., limitation (d), as recited in claim 1, and similarly recited in claims 10
and 19 (Appeal Br. 6–8; see also Reply Br. 3–6).
Oulu is directed to a monitoring system that monitors the amount of
time spent by specific application components during the execution of
specific website transactions (Oulu Abstr.). Oulu discloses a website
system 112, with reference to Figure 1A, including an application server that
runs one or more applications 102 (id. ¶ 25). As shown in the figure,
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website 112 is monitored by one or more host computers 110, each of which
runs an agent component 116 that emulates the actions of real users (id.
¶ 30). Oulu discloses that, as a transaction is executed, computer 110
monitors one or more associated performance metrics or parameters
(e.g., transaction response time (the amount of time the transaction takes to
complete), server response times, load times for specific page components,
transaction pass/fail status, etc.) and reports the performance parameter
measurements “for storage in a central database 118, allowing such data to
be viewed in aggregate form via various[ ] online and interactive reports of a
reports server 120” (id. ¶ 32).
Oulu illustrates an example “breakdown over time” report in Figure 2,
and describes that the report displays a breakdown of the monitored
application server’s performance over a user-specified window of time, i.e.,
one day (Oulu ¶ 51). For each sub-window of time (one hour), the report
breaks down the application’s aggregate execution time into constituent
times, i.e., average servlet time, average session EJB time, average entity
EJB time, average database time, average application server queue, and
average application server logic (id. Table 1). Oulu describes that reports
server 120 queries database 118 to retrieve measurement data for all
monitored transactions executed against website 112 within the specified
time window, and uses the retrieved data to calculate the six average
constituent time periods (id.).
Oulu notes, in paragraph 54, that the example performance data in
Figure 2 show that the average session EJB time, i.e., the average time the
transaction was processed by session EJBs, increased from about ½ second
to about 1.5 seconds between 4 p.m. and 5 p.m. during the selected time
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window (Oulu ¶ 54). And Oulu discloses that “[t]o assess the impact this
increase had on end users, the user can view a report, such as the transaction
breakdown report of FIG. 5, that reveals average transaction response times
over the same time window” (id.).2
In rejecting independent claims 1, 10, and 19 under 35 U.S.C. § 103,
the Examiner cited Figures 2 and 5 and paragraphs 32, 51, and 54 of Oulu as
disclosing the argued limitation (Final Act. 4). The Examiner, thus, took the
position that Oulu discloses transaction data for the time period, January 1,
2002, being stored in a first table, i.e., Figure 2, according to a first time
increment, i.e., one hour, and discloses transaction data for the time period,
January 9–15, 2002, being stored in a second table, i.e., Figure 5, aggregated
into a time interval according to a second time increment, i.e., a week (id.
(further noting that “Fig. 5 disclos[es] a dropdown box next to ‘per week’
than [sic] enables changing the time increment and associated text”)).
We agree with Appellant that, even if Oulu discloses that Figures 2
and 5 can include transaction data for the same time period, Oulu does not

2 Oulu describes Figure 5 as a transaction breakdown report that breaks
down the total end-user transaction time for each of multiple transactions
into the following five categories: DNS (Domain Name Server) resolution,
connection, server time, server/network overlap, network time, and client
time (Oulu ¶ 57), and explains that, in this example, a “view application
server breakdown” link is displayed next to the graphs for the “login_user”
and “stock_5day _ chart” transactions, indicating that application server
monitoring data exists in database 118 for these two transactions (id.). “By
selecting one of the ‘view application server breakdown’ links, the user can
effectively drill down to further analyze the server time data displayed in the
transaction breakdown report” — an action the user may wish to take if the
transaction breakdown report reveals that the average server time for a
particular transaction is unusually long, or has increased unexpectedly (id.
¶ 58).
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disclose or suggest that “transaction data for the time period [is] stored in a
first table aggregated into time intervals according to a first time increment,
and the transaction data for the time period [is] further stored in a second
table aggregated into time intervals according to a second time increment”
(emphasis added), as recited in claim 1, and also called for in claims 10 and
19 (Appeal Br. 7). Instead, Oulu discloses that performance parameter
measurements, e.g., response times, transaction pass/fail status, are stored
“in a central database 118, allowing such data to be viewed in aggregate
form via various online and interactive reports of a reports server 120” (Oulu
¶ 32).
Responding to Appellant’s argument, the Examiner asserts that Oulu
discloses that “[a] user can generate and display transaction data for a time
period in a first table according to a first time increment of ‘per Day,’ and a
second table according to a second time increment of ‘per Week’ Fig. 2-A
(per Day); Fig. 5-A (per Week)” (Ans. 8). And the Examiner concludes,
“displaying first and second tables is equivalent to storing the first and
second tables in temporary memory for display” (id.). Yet, as Appellant
observes, “rendering display elements does not inherently involve storage of
[the] display elements as temporary data tables,” and Oulu “provides no
information about how its information is stored initially or with respect to
display” (Reply Br. 5).
The Examiner acknowledges that Oulu discloses that when
monitoring is selected by a user, the collected transaction data are stored in a
central database 118 (Ans. 8 (citing Oulu ¶ 32)). And citing paragraph 28
and Figure 2, the Examiner asserts, in the alternative, that Oulu discloses
that collected data are stored in different time increments (id. (“Compare
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Oulu, ¶ [0028] (disclosing collected data in a time increment of seconds for
breakdown reports) with Oulu, Fig. 2 (disclosing a breakdown report with
collected data in a time increment of milliseconds”)).
The difficulty with the Examiner’s position is that there is nothing in
the cited portions of Oulu that discloses or suggests that a user can display
data in “both milliseconds and seconds at the same time” (Reply Br. 5).
Thus, even assuming “this data were collected according to the teachings of
Oulu, it would be collected according to milliseconds or seconds, but not
both for the same time period” (id. at 5–6).
In view of the foregoing, we do not sustain the Examiner’s rejection
of independent claims 1, 10, and 19 under 35 U.S.C. § 103. For the same
reasons, we also do not sustain the Examiner’s rejection of dependent 2–9,
12–18, and 20. Cf. In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992)
(“dependent claims are nonobvious if the independent claims from which
they depend are nonobvious”).
Dependent Claim 11
Claim 11 depends from independent claim 10. The rejection of
claim 11 does not cure the deficiency in the Examiner’s rejection of
independent claim 10. Therefore, we do not sustain the Examiner’s rejection
of dependent claim 11 under 35 U.S.C. § 103 for the same reasons set forth
above with respect to the independent claims.
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CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–10,
12–20
103 Oulu, Surazski,
Augustine
1–10,
12–20
11 103 Oulu, Surazski,
Augustine,
Callahan
11
Overall
Outcome
1–20
REVERSED