Ex Parte Batteram et alDownload PDFPatent Trial and Appeal BoardApr 24, 201411311070 (P.T.A.B. Apr. 24, 2014) Copy Citation 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. 11/311,070 12/19/2005 Harold Batteram Batteram 2-3 (CLNT/127450 8644 46363 7590 04/24/2014 WALL & TONG, LLP/ ALCATEL-LUCENT USA INC. 25 James Way Eatontown, NJ 07724 EXAMINER BIRKHIMER, CHRISTOPHER D ART UNIT PAPER NUMBER 2186 MAIL DATE DELIVERY MODE 04/24/2014 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 HAROLD BATTERAM and DIRK-JAAP PLAS ____________ Appeal 2011-012577 Application 11/311,070 Technology Center 2100 ____________ Before JOSEPH F. RUGGIERO, JOHN A. EVANS, and LINZY T. McCARTNEY, Administrative Patent Judges. EVANS, Administrative Patent Judge. DECISION ON APPEAL Appellants1 seek our review2 under 35 U.S.C. § 134(a) of the Examiner’s final rejection of Claims 22, 23, 25-39 and 41-453 as anticipated and as obvious. Claims 1-21, 24 and 404 were cancelled. We have jurisdiction under 35 U.S.C. § 6(b). 1 The Real Party in Interest is Alcatel-Lucent. 2 We have considered in this decision only those arguments Appellants actually raised in the Briefs. Any other arguments which Appellants could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). 3 App. Br. 7. 4 App. Br. 3. Appeal 2011-012577 Application 11/311,070 2 We AFFIRM.5 STATEMENT OF THE CASE The claims relate to a method and system for protecting privacy- sensitive information through redundant, encrypted and distributed storage of information. Spec., p. 1, ll. 5-7. Claims 22, 34, and 39 are independent. The claims have not been argued separately and therefore stand or fall together. 37 C.F.R. § 41.37(c)(1)(iv). An understanding of the invention can be derived from a reading of exemplary Claim 22, which is reproduced below with disputed limitations italicized: 22. A method for storing data for a user having a plurality of user devices, the method comprising: receiving a data file associated with one of a plurality of user devices for storing on a virtual disk (VD), the VD formed using at least portions of each of the multiple separate storage facilities, wherein the user device includes a virtual disk device driver (VDDD) and operates as a master node adapted to communicate with the multiple separate storage facilities; dividing the received data file into a plurality of data segments; distributing each of the data segments toward at least two of the multiple separate storage facilities forming the VD; 5 Our decision refers to Appellants’ Appeal Brief filed April 18, 2011 (“App. Br.”); Reply Brief filed July 26, 2011 (“Reply Br.”); Examiner’s Answer mailed July 11, 2011 (“Ans.”); Final Office Action mailed March 9, 2011 (“Final Rej.”); and the original Specification filed December 19, 2005 (“Spec.”). Appeal 2011-012577 Application 11/311,070 3 storing, in an index table, VD location information associated with each data segment of the received file, said VDDD being adapted to retrieve from said VD any data file distributed thereto in response to a request for said data file from any user device. REFERENCES The Examiner relies upon the prior art as follows: Gammel US 2003/0005313 A1 Pub. Jan. 2, 2003 Hashimoto US 2003/0182571 A1 Pub. Sept. 25, 2003 Yanai US 6,647,474 B2 Pub. Nov. 11, 2003 The claims stand rejected as follows:6 1. Claims 22, 25-30, 32-34, 36-39, and 41-45 stand rejected under 35 U.S.C. §102(a) as anticipated by Yanai. Ans. 5-17. 2. Claims 23 and 35 stand rejected under 35 U.S.C. §103(a) as obvious over Yanai and Gammel. Ans. 17-19. 3. Claim 31 stands rejected under 35 U.S.C. §103(a) as obvious over Yanai and Hashimoto. Ans. 18. ISSUES ON APPEAL Based on Appellants’ arguments in the Appeal Brief (App. Br. 8-14) and Reply Brief (Reply Br. 2-7), the issues presented on appeal are: 6 Based on Appellants’ arguments in the Appeal Brief, we will decide the appeal on the basis of claims as set forth below. See 37 C.F.R. § 41.37(c)(1)(vii). Appeal 2011-012577 Application 11/311,070 4 I. Whether the Examiner erred in finding Yanai to anticipate the disputed limitations of independent Claims 22, 34, and 39, specifically “a virtual disk (VD), the VD formed using at least portions of each of the multiple separate storage facilities, wherein the user device includes a virtual disk device driver (VDDD) and operates as a master node adapted to communicate with the multiple separate storage facilities;” and II. In light of the alleged deficiencies of Yanai, whether the Examiner erred in rejecting Claims 23, 31 and 35 under 103(a) as obvious, using the Yanai reference. ANALYSIS I. ANTICIPATION We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions. Appellants contend that Yanai does not teach “wherein the user device includes a virtual disk device driver (VDDD) and operates as a master node adapted to communicate with the multiple separate storage facilities,” as required by independent Claims 22, 34 and 39.7 App. Br. 8. Appellants contend that the data director 32 of Yanai is not equivalent to the claimed 7 There is a lack of antecedent basis for the recitation “the multiple separate storage facilities” in Claims 22 and 34. Appeal 2011-012577 Application 11/311,070 5 virtual disk device driver. App. Br. 9. Appellants argue that the data director of Yanai executes one or more sets of predetermined micro-code to control data transfer between the host, cache memory, and the storage device, which is not the same as the claimed user device that includes a VDDD and operates as a master node adapted to communicate with multiple separate storage facilities.8 App. Br. 11. Appellants further contend that the Examiner failed to accord patentable weight to the disputed limitations, and that Yanai does not describe the elements of the claims with sufficient specificity to constitute anticipation. App. Br. 13-14. The Examiner finds that the user device of Yanai has a virtual disk that is formed from multiple separate storage facilities 22a and 50b, and finds the user device has a VDDD (data director 32) and operates as a master node (primary storage system 14) to communicate with the multiple separate storage facilities. Ans. 5-6 (see Yanai, Fig. 1). The Examiner contends the data director of Yanai is analogous to the claimed VDDD because the data director is responsible for transferring data between the host, cache and storage device, thus is adapted to retrieve data from the virtual disk. Ans. 20-21. The Examiner argues there are no limitations in the claims that as to how the VDDD performs the function of retrieving data, and the data director 32 of Yanai performs the same function as the VDDD with use of 8 Appellants apply the equivalence test for a 112, 6th Paragraph “means plus function” limitation. However, neither “means plus function,” nor equivalent language, is recited in the claims. See MPEP § 2181. Appeal 2011-012577 Application 11/311,070 6 micro-code. Ans. 20. The Examiner further contends the primary data storage system 14 is the master node because it controls the mirroring of data to the secondary data storage system without intervention from the host 12, thus it is adapted to communicate with multiple separate storage facilities. Ans. 20. Appellants reply that Yanai does not teach “a virtual disk (VD), the VD formed using at least portions of each of the multiple separate storage facilities.” Reply Br. 4. Appellants contend that Yanai discloses a primary data storage and a secondary data storage, whereas the claims require that the VD be formed using at least portions of each of the multiple separate storage facilities. Reply Br. 3. We disagree with the Appellants’ contentions. During examination of a patent application, pending claims are given their broadest reasonable construction consistent with the Specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969). We agree with the Examiner’s interpretation of the claimed virtual disk, which is identified as virtual storage regions 22a of drive 20, and 50b of drive 48. We find Yanai to disclose a data file associated with user 12 to be stored on virtual drive 22a of device 14, and mirrored on virtual drive 50b of device 46. Yanai, col. 5, ll. 21-28. An index table stores virtual drive location information for the data file, which is used by the service processor to execute the copying function. Yanai, col. 7, l. 56 to col. 8, l. 7. These are the only structural and functional limitations of Appeal 2011-012577 Application 11/311,070 7 the virtual disk found in the independent claims, and we agree that Yanai discloses these limitations. Further, we agree with the Examiner’s interpretation of the claimed user device including a virtual disk device driver (VDDD), which is identified as the user device 14 having a VDDD 32 (data director). The only limitation regarding the VDDD in the independent claims is that the VDDD is adapted to retrieve data from the virtual disk. The data director 32 controls the data between the host 12, the cache 28, the disk adaptor 30 of the primary storage 20, the disk adaptor 36 connected to the secondary storage 48. Thus, we agree that the data director 32 is adapted to retrieve data from the virtual disks, comprised of 22a on 20 and 50b on 48. Appellants contend that Yanai’s data director is not equivalent to the claimed VDDD because Yanai’s data director operates by means of microcode. We find this argument to be unavailing because the claims do not exclude microcode and Appellants have not defined their VDDD so as to preclude the use of microcode. We also agree with the Examiner’s interpretation of the claimed user device operating as a master node adapted to communicate with multiple separate storage facilities. Again, user device 14 has the data director 32 that is adapted to communicate with storage device 20 and secondary storage device 48, thus user device 14 communicates with the multiple separate storage facilities. Appeal 2011-012577 Application 11/311,070 8 Therefore, we find the Examiner did not err in rejecting Claims 22, 25-30, 32-34, 36-39 and 41-45 under 35 U.S.C. § 102(b) as anticipated by Yanai. II. OBVIOUSNESS Because we find the Examiner did not err in the application of Yanai to reject independent Claims 22, 34 and 39, we also find the Examiner did not err in rejecting Claims 23, 31 and 35 as obvious. DECISION The rejection of Claims 22, 25-30, 32-34, 36-39, and 41-45 under 35 U.S.C. § 102(b) is AFFIRMED. The rejection of Claims 23, 31, and 35 under 35 U.S.C. § 103(a) is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED ke Copy with citationCopy as parenthetical citation