13234883 (P.T.A.B. Sep. 12, 2016)

Ex Parte Ahrens et al

Patent Trial and Appeal BoardSep 12, 2016

13234883 (P.T.A.B. Sep. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/234,883 09/16/2011 32615 7590 09/14/2016 OSHA LIANG LLP/Oracle TWO HOUSTON CENTER 909 FANNIN, SUITE 3500 HOUSTON, TX 77010 FIRST NAMED INVENTOR Matthew A. Ahrens 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 03226/770003;SUN060280-U 6003 EXAMINER SOMERS, MARC S ART UNIT PAPER NUMBER 2159 NOTIFICATION DATE DELIVERY MODE 09/14/2016 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@oshaliang.com lord@oshaliang.com hathaway@oshaliang.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATTHEW A. AHRENS and MARK J. MAYBEE Appeal2015-005355 Application 13/234,883 Technology Center 2100 Before JASON V. MORGAN, SCOTT B. HOW ARD, and MATTHEW J. McNEILL, Administrative Patent Judges. HOW ARD, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from a Non-Final Rejection of claims 21-29, which constitute all of the claims pending in this application. Claim 1-20 have been cancelled. Br. 16. Although the action appealed from is a Non-Final Rejection, because the application has been twice rejected we have jurisdiction pursuant to 35 U.S.C. Â§Â§ 6 and 134. Ex parte Lemoine, 46 USPQ2d 1420, 1423 (BPAI 1994) (precedential). We affirm. 1 Appellants identify Oracle America Inc., formerly known as Sun Microsystems, Inc., as the real party in interest. Br. 2. Appeal2015-005355 Application 13/234,883 THE INVENTION2 The disclosed and claimed invention is directed to a block-based incremental backup. Claim 21, reproduced below with the disputed limitations italicized, is illustrative of the claimed subject matter: 21. A non-transitory computer readable medium comprising instructions, which when executed by a processor perform a method, the method comprising: obtaining a root block birth time for a root block; making a first determination that the root block birth time is greater than a last backup time; based on the first determination: initiating a current backup process by backing up the root block; obtaining a first list of all blocks referenced by the root block, wherein the first list identifies at least a first indirect block and a second indirect block, and wherein the root block, the first and second indirect blocks, and data blocks referenced by the first and second indirect blocks form a hierarchical block tree representing a single file in a file S}'Stem; obtaining a first indirect block, wherein the first indirect block comprises a first block pointer referencing a first block, and wherein the first block pointer comprises a first metaslab ID, a first offset, a first birth time, and a first checksum associated with the first block of a first plurality of blocks; 2 Appellants state "[t]here are no other appeals, interferences, or judicial proceedings which will directly affect or be directly affected by or have a bearing on the PTAB's decision in this appeal." Br. 2. This statement does not appear to comply with the requirements to identify certain prior appeals to the Board that "may be related to ... or have a bearing on the Board's decision in the pending appeal." 37 C.F.R. Â§ 41.37(c)(ii) (2013). In particular, Appellants fail to identify an appeal in the parent application involving similar prior art. See Ex Parte Ahrens, Appeal 2009-012401, 2011 WL 2791046 (BP AI July 14, 2011 ). 2 Appeal2015-005355 Application 13/234,883 making a second determination that the first birth time is not greater than the last backup time, wherein the first indirect block is not backed up based on the second determination, and wherein no blocks referenced by the first indirect block are backed up based on the second determination, wherein the first indirect block directly references the first plurality of blocks, wherein at least one of the first plurality of blocks directly references a second block, wherein the first indirect block does not directly reference the second block, wherein after the second determination~ no block directly referenced by first indirect block is analyzed to determine whether it should be backed-up during the current backup process, wherein after the second determination no block directly referenced by the first plurality of blocks is analyzed to determine whether it should be backed-up during the current backup process; and obtaining a second indirect block, wherein the second indirect block comprises a second block pointer referencing a third block, and wherein the second block pointer comprises a second metaslab ID, a second offset, a second birth time, and a second checksum associated with the third block; making a third determination that the second birth time is greater than the last backup time; based on the third determination: backing up the second indirect block; and obtaining a second list of all blocks referenced by the second indirect block, wherein the second list identifies at least the third block and a fourth block; recursively traversing the hierarchical block tree upwards from a last block checked for back up in the second list, until the root block is encountered; and upon encountering the root block, determining whether any blocks remain in the first list that need to be incrementally backed up. 3 Appeal2015-005355 Application 13/234,883 REFERENCES The prior art relied upon by the Examiner as evidence in rejecting the claims on appeal is: Schmidt Bodnar Cameron Curran et al. us 5,857' 198 us 6,012,063 US 6,823,442 Bl US 2004/0268068 Al Jan. 5, 1999 Jan.4,2000 Nov. 23, 2004 Dec. 30, 2004 "Depth-first Search," Wikipedia, The Free Encyclopedia (Mar. 9, 2004) [http://web.archive.org/web/20040309063932/http://en.wikipedia.org/wiki/D epth-first_search] (hereinafter "Depth-first Search"). REJECTIONS Claims 24 and 29 stand rejected under 35 U.S.C. Â§ 112 fourth paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Non-Final Act. 2-3. Claims 21-29 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Curran in view of Cameron, Bodnar, Schmidt, and Wikipedia. Non-Final Act. 3-11. ANALYSIS We have reviewed the Examiner's rejection in light of Appellants' arguments that the Examiner erred. In reaching this decision, we have 4 Appeal2015-005355 Application 13/234,883 considered all evidence presented and all arguments made by Appellants. 3 We are not persuaded by Appellants' arguments regarding claims 21-29, and we incorporate herein and adopt as our own: ( 1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2-11 ), and (2) the reasons and rebuttals set forth in the Examiner's Answer in response to Appellants' arguments (Ans. 2-12). We incorporate such findings, reasons, and rebuttals herein by reference unless otherwise noted. However, we highlight and address specific findings and arguments for emphasis as follows. Section 112, Fourth Paragraph Rejections Appellants state they "will cancel claims 24 and 29 upon the final disposition of the arguments presented [in the Appeal Brief] and, accordingly, defers responding to theÂ§ 112, 4th paragraph rejection at this time in order to have the arguments herein considered on the merits." Br. 6, fn. 1. Appellants have not identified any errors in the Examiners findings or conclusions. "If an appellant fails to present arguments on a particular issue----or, more broadly, on a particular rejection-the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection." Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) 3 Rather than reiterate the entirety of the arguments of Appellants and the positions of the Examiner, we refer to the Appeal Brief (filed Apr. 2, 2014); the Non-Final Office Action (mailed Oct. 10, 2013); and the Examiner's Answer (mailed May 15, 2014) for the respective details. 5 Appeal2015-005355 Application 13/234,883 (precedential). Accordingly, we sustain the Examiner's rejection of claims 24 and 29 pursuant to 35 U.S.C. Â§ 112 fourth paragraph. Section 103 Rejection First, Appellants argue that because the Examiner relied on five references, including a citation to Wikipedia, the Examiner must have engaged in improper hindsight. Br. 7 The reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982 (Fed. Cir. 1991) ("The criterion [for an obviousness analysis], however, is not the number of references, but what they would have meant to a person of ordinary skill in the field of the invention."). Because Appellants have not argued that the Examiner did not find a reason to combine the references or that the findings were not supported by "some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness," In re Kahn, 441 F .3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), and merely relied on the number of references, we are not persuaded that the Examiner erred and improperly relied on hindsight. Second, Appellants argue the Examiner erred in relying on Depth-first Search, an article from the Wikipedia website, because "a prior art date ... cannot be definitively determined" and the website is not verifiable. Br. 7-9. Appellants further argue the Board has previously "characterize[ ed] Wikipedia as a non-peer reviewed source of dubious reliability having low probative value." Br. 8. 6 Appeal2015-005355 Application 13/234,883 The Examiner finds that Depth-first Search is a true and accurate copy of the relevant Wikipedia page on March 9, 2004, because it was obtained by the Internet Archive4, a third-party archiver of web pages, on the date in question. Ans. 4--5. Because that date is more than a year before the earliest filing date, Depth-first Search is a prior art reference. Id. The Examiner further finds that although Wikipedia may or may not be accurate, the website is a printed publication and is therefore prior art for all that it discloses and enables. Ans. 5---6. The Examiner further determines that, as a printed publication, the reference is presumed to be operable and notes that Appellants "has not provided any evidence to show how the Depth-first search reference is not operable." Id. We are not persuaded by Appellants' arguments that Depth-first Search is not dated. Depth-first Search contains "20040309" as part of the URL, providing evidence that the URL refers to a March 9, 2004, snapshot of the Wikipedia article. Depth-first Search at 1. Therefore, we agree with the Examiner that the URL indicates that the webpage was acquired by the Internet Archive on March 9, 2004. We further note that the Internet Archive version of Depth-first Search accords with the version of the article as edited on March 2, 2004, available through Wikipedia's Revision History feature. 5 We are also not persuaded that, in this instance, a historical Wikipedia article cannot be used as prior art per se because it is not reliable. A reference is prior art for all that it discloses or teaches, and a printed 4 This is sometimes referred to as the Way Back Machine. 5 https:// en. wikipedia.org/w /index. php?title= Depth-first_search&oldid= 2697084. 7 Appeal2015-005355 Application 13/234,883 publication is presumed to be enabled. Jn re Antor Media Corp., 689 F .3d 1282, 1288 (Fed. Cir. 2012) (holding "that a prior art printed publication cited by an examiner is presumptively enabling barring any showing to the contrary by a patent applicant or patentee"). Appellants have not offered any evidence showing that Depth-first Search is not enabling and attorney argument regarding reliability is not sufficient to demonstrate that the article is not enabled or operable. See Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Third, Appellants argue the Examiner erred in finding Curran, Cameron, Bodnar, and Schmidt teach or suggest: "obtaining a first list of all blocks referenced by the root block, wherein the first list identifies at least a first indirect block and a second indirect block, and wherein the root block, the first and second indirect blocks, and data blocks referenced by the first and second indirect blocks form a hierarchical block tree representing a single file in a file system," and each other limitation requiring back up of indirectly blocks not directly referenced by the single block. Br. 9-12 (quoting claim 1). Appellants argue Curran merely teaches "using Log Sequence Numbers (LSNs) to determine whether a given block should be backed-up" and "analyzing the LSN of each block to determine whether a block should be backed-up." Br. 10 (citing Curran i-f 58 and Figs. 6A, 6B). Appellants further argue Cameron and Bodnar are silent regarding: [(i)] indirect blocks that are part of a list of blocks referenced by a root block have a birth time greater than the last back up time; and (ii) a hierarchical block tree including a root block, indirect blocks referenced by the root block, and data blocks reference by the indirect blocks representing a single file in a file system. 8 Appeal2015-005355 Application 13/234,883 Br. 11. Finally, Appellants argue Schmidt does not cure the deficiencies of the other references. Id. We are not persuaded by Appellants' arguments that the Examiner erred. The Examiner finds (Non-Final Act. 5; Ans. 6-9), and we agree, Curran teaches the disputed claim limitation, including a first and second indirect block and the block tree representing a single file in the file system. Specifically, Curran teaches pointers (3 lOA, 3 lOB, and 3 lOC) which are indirect blocks that point to specific data in a hierarchical tree. Curran i-f 62, Fig. 5 ("FIG. 5 is a view of a file system data structure similar to FIG. 4, but more applicable to larger files in which indirect pointers are employed. For example, it is seen that Pointer A in field 215 points to block 31 OA1 which itself includes pointers Ai, A2, A3 and A4, which point to data areas 311A1 , 311A2, 31 lA3 and 311A4, respectively.") (emphasis omitted). Each inode number of the hierarchical tree can refer to a separate file in a file system. Curran i-f 54. And Curran teaches that although dirty bits can be used to determine which blocks need to be backed up, the "dirty bit indicators could be replaced by any other timestamp mechanisms, for example a log sequence number (LSN)." Curran i-fi-157, 64. As for Appellants' arguments regarding the other three references, we are not persuaded that the Examiner erred because Appellants argue the references individually rather than the combined teachings of the references as relied on by the Examiner. Compare Br. 11-12, with Final Act. 4--9; Ans. 6-9. Nonobviousness cannot be established by discussing the references individually when the rejection is predicated upon a combination of prior art disclosures. In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The test for obviousness is not whether the claimed invention is expressly 9 Appeal2015-005355 Application 13/234,883 suggested in any one or all of the references, but whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Fourth, Appellants argue Depth-first Search does not teach or suggest the "recursively traversing" and "upon encountering" limitations recited in claim 1. Br. 12-14. More specifically, Appellants argue Depth-first Search does not teach or suggest "backing up data blocks and indirect blocks. Indeed, [Depth-first Search] is completely silent with regard to block-based incremental back up of any type." Br. 13. Instead, Appellants argue Depth- first Search merely teaches "that a depth-first search is performed by starting at the root and exploring along with path as far as possible before backtracking." Id. "The Examiner is not relying strictly on the Depth-first [S]earch reference to teach the claim limitation but rather the teaching of Depth-first [S]earch as it is applied to the prior art references." Ans. 10. The Examiner finds, and we agree, that the combination of all the references teach the disputed claim limitation. See Ans. 10-12. Because Appellants' arguments are directed to Depth-first Search individually and not the combined teachings of all the references relied on by the Examiner, we are not persuaded that the Examiner erred. See Merck, 800 F.2d at 1097; Keller, 642 F.2d at 425. According! y, we sustain the Examiner's rejection of claim 21, along with the rejection of claims 22-29, which are not separately argued. 10 Appeal2015-005355 Application 13/234,883 DECISION For the above reasons, we affirm the Examiner's decisions rejecting claims 21-29. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 11