Amazon Technologies, Inc

Patent Trials and Appeals Board

Jan 13, 2022

2021005466 (P.T.A.B. Jan. 13, 2022)

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. 14/816,481 08/03/2015 Gang He 170104-1872 2679 71247 7590 01/13/2022 Client 170101 c/o THOMAS HORSTEMEYER, LLP 3200 WINDY HILL RD SE SUITE 1600E ATLANTA, GA 30339 EXAMINER WASSUM, LUKE S ART UNIT PAPER NUMBER 3992 NOTIFICATION DATE DELIVERY MODE 01/13/2022 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@thip.law uspatents@tkhr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte GANG HE and JAMES CHRISTOPHER SORENSON, III ____________________ Appeal 2021-005466 Application 14/816,4811 Patent 8,504,535 B1 Technology Center 3900 ___________________ Before ALLEN R. MacDONALD, JOHN A. JEFFERY, and MICHAEL J. ENGLE, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from a Final Rejection of claims 1-11, 14-32, 34, 40-47, 49, 53-67, 76, 77, 81-88, 92- 101, 105-110, 113, 116-121, 124, and 127-139. Appellant cancelled claims 12, 13, 33, 35-39, 48, 50-52, 68-75, 78-80, 89-91, 102-104, 114, 115, 122, 1 Filed August 3, 2015, seeking to reissue U.S. Patent 8,504,535 B1, issued August 6, 2013, based on Application 12/972,634, filed December 20, 2010. 2 Appellant identifies Amazon Technologies, Inc. as the real party in interest. Appeal Br. 2. Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 2 123, 125, and 126. Appeal Br. 43-76. We have jurisdiction under 35 U.S.C. § 6(b). CLAIMED SUBJECT MATTER Reissue claims 11 and 40 on appeal are illustrative of the claimed subject matter (emphasis, formatting, and bracketed material added): Claim 11. (Reissue) A method, comprising: [A.] receiving, in at least one computing device, a request to retrieve a data object from a data storage system comprising at least one data store; [B.] periodically determining, in the at least one computing device, a size threshold to maintain a balance between data objects stored in a first replication scheme and a second replication scheme in the data storage system based at least in part on a number of data objects distributed above or below the size threshold in an object size distribution for the data storage system; [C.] determining, in the at least one computing device, that a size of the data object exceeds the size threshold; [D.] determining, in the at least one computing device, that the data object is stored in the first replication scheme in the data storage system, the first replication scheme comprising a redundant replication scheme wherein a copy of the data object is stored in a plurality of data stores in the data storage system; and [E.] encoding, in the at least one computing device, the data object in the second replication scheme in response to determining that the size exceeds the size threshold, the second replication scheme comprising an erasure coding scheme, wherein the data object is divided into a plurality of shards, each of the plurality of shards having a size less than an object size of the data object and stored in a respective plurality of data stores in the data storage system. Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 3 Claim 40. (Reissue) A system, comprising: [A.] at least one computing device; and [B.] at least one storage device that is accessible to the at least one computing device, the at least one storage device storing a data storage application executable in the at least one computing device, the data storage application configured to cause the at least one computing device to at least: [B.i.] generate an access pattern distribution of a plurality of data objects stored in a data storage system, the data storage system comprising at least one data store; [B.ii.] periodically determine an access frequency threshold to maintain a balance between data objects stored in a redundant replication scheme and an erasure coding scheme in the data storage system based at least in part on a number of data objects distributed above or below the access frequency threshold in the access pattern distribution; [B.iii.] identify a data object stored in the data storage system having an access frequency that fails to meet the access frequency threshold, the data object stored in the data storage system using the redundant replication scheme wherein a copy of the data object is stored in a plurality of data stores in the data storage system; and [B.iv.] store the data object in the data storage system in the erasure coding scheme, wherein the data object is divided into a plurality of shards, each of the plurality of shards having a size of less than an object size of the data object, each of the plurality of shards being stored in a respective plurality of data stores in the data storage system. Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 4 REFERENCES3 The Examiner relies on the following references: Name Reference Date Ozzie US 8,458,287 B2 June 4, 2013 Simitci US 8,473,778 B2 June 25, 2013 Li US 9,047,310 B2 June 2, 2015 Ulrich US 2002/0138559 A1 Sept. 26, 2002 REJECTIONS A. The Examiner rejects claims 11, 14-26, 30-32, 34, 49, 53-61, 65-67, 76, 77, 81-84, 88, 92-95, 99-101, 105-110, 113, 116-121, 124, 127-136, and 139, under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ozzie, Li, and Ulrich. Final Act. 8-78. The contention discussed herein as to claim 11 is dispositive as to this rejection because the discussed limitation is found in and is repeatedly identically rejected in all these claims. Therefore, except for our ultimate decision, we do not address the merits of the § 103 rejection of claims 11, 14-26, 30-32, 34, 49, 53-61, 65-67, 76, 77, 81-84, 88, 92-95, 99-101, 105-110, 113, 116-121, 124, 127-136, and 139, further herein. 3 All citations herein to references are by the first named inventor. Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 5 B. The Examiner rejects claims 1-10, 27-29, 62-64, 85-87, 96-98, 137, and 138, under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ozzie, Li, Ulrich, and Simitci. Final Act. 78-108. In arguing this rejection, Appellant only references (“for the reasons set forth above,” Appeal Br. 30) the arguments for claim 11. The contention discussed herein as to claim 11 is dispositive as to this rejection because the discussed limitation is found in and is repeatedly identically rejected in all these claims. Also, as Appellant points out, “[t]he addition of Simitci does not cure the deficiencies of Ozzie, Li, and Ulrich.”4 Id. Therefore, except for our ultimate decision, we do not address the merits of the § 103 rejection of claims 1-10, 27-29, 62-64, 85-87, 96-98, 137, and 138, further herein.5 C. The Examiner rejects claims 40-47 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ozzie, Simitci, and Ulrich. Final Act. 108-116. The contentions discussed herein as to claim 40 are dispositive as to this rejection. Therefore, except for our ultimate decision, we do not address the merits of the § 103(a) rejection of claims 41-47 further herein. 4 Nor does the Examiner rely on Simitci for such a cure. 5 Although not argued by Appellant, the contention as to Simitci discussed herein as to claim 40 is equally applicable to these claims because the limitation discussed at to claim 40 is found in and is repeatedly identically rejected in all these claims. Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 6 OPINION We have reviewed the Examiner’s rejections in light of Appellant’s Appeal Brief and Reply Brief arguments. A. Claims 11 and 40 Claim 11 at above part B. requires (emphasis added): [B.] periodically determining, in the at least one computing device, a size threshold to maintain a balance between data objects stored in a first replication scheme and a second replication scheme in the data storage system based at least in part on a number of data objects distributed above or below the size threshold in an object size distribution for the data storage system. Claim 40 at above part B.ii. requires (emphasis added): [B.ii.] periodically determine an access frequency threshold to maintain a balance between data objects stored in a redundant replication scheme and an erasure coding scheme in the data storage system based at least in part on a number of data objects distributed above or below the access frequency threshold in the access pattern distribution. B. B.i. As to claim 11, the Examiner finds: [C]hoosing the size threshold based at least in part on the number of data files distributed above or below the threshold, as Ulrich suggests, would allow one to balance the number of data files stored in the two schemes. Moreover, just as Ulrich further discloses operations that “can be performed continuously or at periodic time intervals” (see, e.g., ¶ [0495]), a person of ordinary skill in the art would have been prompted to periodically update Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 7 the threshold in order to preserve the balance between the two schemes when, as Ozzie further discloses, new data files are added to the data storage system (see, e.g., FIG. 4 and column 12, lines 3-59). Thus, the combined teachings of the references would have suggested: periodically determining, in the at least one computing device, a size threshold to maintain a balance between data objects stored in a first replication scheme and a second replication scheme in the data storage system based at least in part on a number of data objects distributed above or below the size threshold in an object size distribution for the data storage system[.] Final Act. 10-11 (emphasis and formatting added). B.ii. As to claim 40, the Examiner finds: Simitci discloses a data storage system that determines whether to store objects in a replication scheme or an erasure coding scheme (see, e.g., FIG. 7, FIG. 8, column 16, lines 40-46 and column 17, lines 1-10). The determination is based at least in part on an access frequency threshold that “may be client selected, user selected, system selected, dynamic, static, or the like” (see, e.g., FIG. 11 and column 19, lines 33-47). Final Act. 110. C. C.i. Appellant raises the following argument in contending that the Examiner erred in rejecting claim 11 under 35 U.S.C. § 103(a). Ulrich does not show or suggest the use of a periodically determined threshold, much less “periodically determining, in the at least one computing device, a size threshold to maintain a Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 8 balance between data objects stored in a first replication scheme and a second replication scheme in the data storage system based at least in part on a number of data objects distributed above or below the size threshold in an object size distribution for the data storage system,” as claimed. Appellant notes that Ulrich contains no mention of thresholds, or periodically determining any type of size threshold, nor does the disclosure of Ulrich require the determination of a size threshold. For example, Ulrich may categorize video files as being “large objects,” and image files as being “small objects,” with no size threshold being necessary. Appeal Br. 24-25. Ulrich does not show or suggest periodically determined size thresholds, nor would capacity balancing or throughput balancing motivate one of ordinary skill in the art to select a particular replication scheme over another using periodically determined thresholds. Appeal Br. 28. C.ii. Also, Appellant raises the following argument in contending that the Examiner erred in rejecting claim 40 under 35 U.S.C. § 103(a). Simitci at col. 19, ll. 33-47, discusses a demand for a data stream and “a determination that demands for the data stream is below a predefined demand threshold.” Although Simitci indicates that the demand threshold “may be client selected, user selected, system selected, dynamic, static, or the like” (col. 19, ll. 40-42), Simitci fails to show or suggest exactly what goes into the determination, or that an access frequency threshold is determined periodically “based at least in part on a number of data objects distributed above or below the access frequency threshold in the access pattern distribution.” Appeal Br. 31. Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 9 Furthermore, Ulrich does not show or suggest the use of a periodically determined threshold, much less “periodically determin[ing] an access frequency threshold to maintain a balance between data objects stored in a redundant replication scheme and an erasure coding scheme in the data storage system based at least in part on a number of data objects distributed above or below the access frequency threshold in the access pattern distribution,” as claimed. Appellant notes that Ulrich contains no mention of thresholds, or periodically determining any type of access frequency threshold, nor does the disclosure of Ulrich require the determination of an access frequency threshold. Appeal Br. 32-33. C.iii. Further, Appellant raises the following argument in contending that the Examiner erred in rejecting claims 11 and 40 under 35 U.S.C. § 103(a). Evenly distributing “the number of small objects, the number of medium-sized objects, and the number of large objects” as in Ulrich does not render obvious Appellant’s periodically determined thresholds that “maintain a balance between data objects stored in a first data replication scheme and a second data replication scheme in the data storage system,” as claimed. Appellant submits that the reasoning provided by the Answer is the product of impermissible hindsight in view of the present claims and specification. Although nearly all rejections of claims involve the use of a degree of hindsight, it is also the case that hindsight cannot be the basis of a rejection. Reply Br. 7 (emphasis added). D. As articulated by the Federal Circuit, the Examiner’s burden of proving non-patentability is by a preponderance of the evidence. See In re Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 10 Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (“preponderance of the evidence is the standard that must be met by the PTO in making rejections”). “A rejection based on section 103 clearly must rest on a factual basis[.]” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” Id. We conclude the Examiner’s analysis fails to meet this standard because the rejection does not adequately explain the Examiner’s findings of fact. E. We agree with Appellant that the Examiner’s articulated rationale is the product of impermissible hindsight (supra at Section C.iii.). When the rejection does not explain what would have led the skilled artisan at the time of the invention to the claimed combination as a whole, we infer that the Examiner used hindsight to conclude that the invention was obvious. Cf. In re Kahn, 441 F.3d 977, 986 (Fed. Cir. 2006). We determine that the Examiner’s reliance (supra at Section C.i. and C.ii.) on (1) (claim 11) Ulrich at paragraph 495 to teach “operations that ‘can be performed continuously or at periodic time intervals’” (Final Act. 10), and (2) (claim 40) Simitci at column 19 to show “an access frequency threshold that ‘may be . . . dynamic’” (Final Act. 110), are each insufficient to show it would have been obvious to provide (a) (claim 11) “periodically determining . . . a size threshold,” and Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 11 (b) (claim 40) “periodically determining . . . an access frequency threshold,” in the manner claimed. We agree with Appellant that the references do not teach the particular claimed periodically determine size or frequency thresholds and “the reasoning to fill the gaps offered by the Examiner lacks the rational underpinning required under KSR Int’l Co. v. Teleflex, Inc., [550 U.S. 398, 418] (2007).” Reply Br. 8. We conclude, consistent with Appellant’s argument, that there is currently insufficient articulated reasoning to support the Examiner’s finding that the references teach, suggest, or otherwise render obvious (a) part B. as required by claim 11 or (b) part B.ii. as required by claim 40. Therefore, we conclude that there is insufficient articulated reasoning to support the Examiner’s final conclusion that claims 11 and 40 would have been obvious to one of ordinary skill in the art at the time of Appellant’s invention. F. New Ground of Rejection Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim 1 under 35 U.S.C. § 112(a), as failing to comply with the written description requirement. Claim 1, last four lines, currently requires (emphasis added): store the second at least one object in the first data replication scheme in the data storage system when the first at least one object is either less than the size threshold or the second at least one object is accessed more often than the access frequency threshold over a period of time. Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 12 This process flow does not correspond to the process flow that we find in Appellant’s Specification at column 8, line 61, through column 9, line 1, and column 9, lines 16-22 cited by the Appellant in the Summary of Claimed Subject Matter. Appeal Brief 4. Appellant may wish to consider whether claim 1 was intended to read: store the second at least one object in the first data replication scheme in the data storage system when the second at least one object is either less than the size threshold or the second at least one object is accessed more often than the access frequency threshold over a period of time. This change would meet the written description requirement. See col. 8, l. 61 - col. 9, l.1; col. 9, ll. 16-22. CONCLUSION Appellant has demonstrated the Examiner erred in rejecting claims 1- 11, 14-32, 34, 40-47, 49, 53-67, 76, 77, 81-88, 92-101, 105-110, 113, 116-121, 124, and 127-139 as being unpatentable under 35 U.S.C. § 103(a). The Examiner’s rejections of claims 1-11, 14-32, 34, 40-47, 49, 53- 67, 76, 77, 81-88, 92-101, 105-110, 113, 116-121, 124, and 127-139 are reversed. We newly reject claim 1 under 35 U.S.C. § 112(a) as failing to comply with the written description requirement. Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 13 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s) /Basis Affirmed Reversed New Ground 11, 14-26, 30- 32, 34, 49, 53- 61, 65-67, 76, 77, 81-84, 88, 92-95, 99-101, 105-110, 113, 116-121, 124, 127-136, 139 103(a) Ozzie, Li, Ulrich 11, 14-26, 30- 32, 34, 49, 53- 61, 65-67, 76, 77, 81-84, 88, 92-95, 99-101, 105-110, 113, 116-121, 124, 127-136, 139 1-10, 27-29, 62-64, 85-87, 96-98, 137, 138 103(a) Ozzie, Li, Ulrich, Simitci 1-10, 27-29, 62-64, 85-87, 96-98, 137, 138 40-47 103(a) Ozzie, Simitci, Ulrich 40-47 1 112(a) Written Description 1 Overall Outcome 1-11, 14-32, 34, 40-47, 49, 53-67, 76, 77, 81-88, 92-101, 105-110, 113, 116-121, 124, 127-139 1 TIME PERIOD FOR RESPONSE This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of Appeal 2021-005466 Application 14/816,481 Patent 8,504,535 B1 14 rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. . . . Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. REVERSED; 37 C.F.R. § 41.50(b)