Appeal No. 2006-2541
Application No. 09/832,438
determining which requests are actually served by servers. Thus, the scope
of claim 1 includes allocating resources (servers) to process requests and the
processing of the request is a tangible result. Accordingly, we find that
claim 1 recites steps that produce a concrete, useful and tangible result. The
Examiner’s rejection of claims 1 and 3 through 14 under 35 U.S.C. § 101 is
not sustained.
Rejection of claims 1, 3 through 15, 17 through 29
and 31 through 42 under 35 U.S.C. § 103(a)
Appellants argue, on page 14 of the Brief, that Smith teaches a system
where a service provider receives a tiered percentage commission of the
commercial transaction based upon the amount of network traffic and that
the resources are allocated on an as needed basis in response to current
demand. Appellants argue that this is in contrast to Appellants’ claimed
invention which calculates profit for processing requests received by the
computing system based upon a service level agreement, wherein the
calculation includes, for each request, penalties if the service level
agreement is not met and profits if the service level agreement is met. On
page 15 of the Brief, Appellants assert that in the claimed invention,
allocation of resources is based upon economic factors for each request
whereas Smith teaches that allocation of resources is based upon
performance factors. On page 17 of the Brief, Appellants argue that
Pappalardo does not teach or suggest allocating resources of a computing
system to maximize profit, nor does Pappalardo teach or suggest
determining a revenue or penalty for each request as recited in claim 1.
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