Ex Parte Beeson et al

Patent Trial and Appeal Board

Nov 24, 2017

14099846 (P.T.A.B. Nov. 24, 2017)

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.
14/099,846 12/06/2013 Jesse D. BEESON C67508 1100US.1 9929
142922 7590 11/28/2017
WOMBLE BOND DICKINSON (US) LLP
P.O. Box 7037
Atlanta, GA 30357-0037
EXAMINER
GIARDINO JR, MARK A
ART UNIT PAPER NUMBER
2135
NOTIFICATION DATE DELIVERY MODE
11/28/2017 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):
IPDocketing @ wbd-u s. com
Mike.Gencarella@wbd-us.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JESSE D. BEESON and JESSE B. YATES
Appeal 2017-008199
Application 14/099,846
Technology Center 2100
Before JASON V. MORGAN, JEREMY J. CURCURI, and
MICHAEL M. BARRY, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—13. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants list Pure Storage, Inc. as the real party in interest. App. Br. 1
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Application 14/099,846
STATEMENT OF THE CASE
Introduction
Appellants state the invention relates to “dynamically load balancing
storage media devices based on an optimal sustained performance level.”
Spec. 2:4—5 (Field of Invention), Title.
What is absent in the prior art is a system and method that
brings load balancing methodologies typically applied at a
macro level (to networks outside of the storage systems or
compute systems) down to the micro level within the storage
system itself and applie[s it] across the storage media devices
within that system using criteria specific to storage media
devices.
Spec. 2:14—18.
Claim 1 is illustrative of Appellants’ claims on appeal:
1. A storage system comprising:
a plurality of storage media devices, each storage media
device comprising one or more addressable storage regions,
each region assigned a weight based on at least a fast or slow
access rate;
a storage controller controlling said plurality of storage
media devices, said storage controller:
receives one or more commands from a queue
representing a load;
identifies a first set of weighted storage regions having a
slow access rate in said plurality of storage media devices and a
second set of weighted storage regions having a fast access rate
in said plurality of storage media devices;
computes an average or discounted average sustained
performance level as a function of said first set of weighted
storage regions having said slow access rate and said second set
of weighted storage regions having said fast access rate; and
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distributes load over time by alternating weighted storage
regions so as to maintain said computed average or discounted
average sustained performance level.
App. Br. 18 (Claims App’x).
Rejections
Claims 1—13 stand provisionally rejected on the ground of
nonstatutory obviousness-type double patenting over co-pending claims of
Application 14/099,845. Final Act. 4—6.
Claims 1,2, 5—8, and 11—13 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Belluomini (US 8,706,962 B2; Apr. 22, 2014),
Chatterjee (US 6,675,195 Bl; Jan. 6, 2004), and Kirby (US 6,327,638 Bl;
Dec. 4, 2001). Final Act. 6—10.
Claims 3, 4, 9, and 10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Belluomini, Chatterjee, Kirby, and Rabii (US 2010/
0281230 Al; Nov. 4, 2010). Final Act. 10-11.
ISSUES (APPELLANTS’ CONTENTIONS)
Appellants contend the Examiner errs in rejecting claim l2 because
the cited prior art cited does not teach or suggest the following limitations:
(1) “a plurality of storage media devices, each storage media device
comprising one or more addressable storage regions, each region
assigned a weight based on at least a fast or slow access rate”
(App. Br. 5—8);
(2) a storage controller that “receives one or more commands from a
queue representing a load” {id. at 8—10);
(3) a storage controller that “identifies a first set of weighted storage
regions having a slow access rate in said plurality of storage
2 Appellants argue the patentability of claims 2—13 solely based on the
arguments presented for claim 1. App. Br. 15—16.
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media devices and a second set of weighted storage regions
having a fast access rate in said plurality of storage media
devices” {id. at 10-13);
(4) a storage controller that “computes an average or discounted
average sustained performance level as a function of said first set
of weighted storage regions having said slow access rate and said
second set of weighted storage regions having said fast access
rate” {id. at 13—14); and
(5) a storage controller that “distributes load over time by alternating
weighted storage regions so as to maintain said computed
average or discounted average sustained performance level” {id.
at 14—15).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
contentions of reversible error. We disagree with Appellant’s conclusions.
Unless indicated otherwise, we adopt the Examiner’s findings and reasons as
set forth in the rejection from which this appeal is taken and as set forth in
the Answer. We highlight the following for emphasis.
1. Provisional Double-Patenting Rejection
Longstanding practice is to summarily affirm a provisional rejection
for nonstatutory obviousness-type double patenting if an appellant does not
contest the substance of the Examiner’s rejections. See, e.g., Ex parte Neel,
No. 2012-010885, 2014 WL 1330895, at *1 n.2 (PTAB Apr. 3, 2014) (non-
precedential); cf. In re Wetterau, 356 F.2d 556, 557—58 (CCPA 1966).
Accordingly, we summarily affirm the Examiner’s uncontested, provisional,
nonstatutory obviousness-type double patenting rejection of claims 1—13 in
this proceeding.
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2. Storage Devices Comprising Weighted Addressable Storage Regions
In rejecting claim 1 under 35 U.S.C. § 103(a), the Examiner relies
primarily on Belluomini, which discloses a multi-tier storage system in
which each tier “has a single and unique type of storage based on a storage
tiers’ performance/cost/energy profile” (Belluomini 3:47-49). See Final
Act. 6—7. The Examiner finds, inter alia, Belluomini teaches “a plurality of
storage media devices, each storage media device comprising one or more
addressable storage regions, each region assigned a weight based on at least
a fast or slow access rate,” as recited. Id. at 7 (citing Belluomini Fig. 1,
3:41-65).
Appellants argue the Examiner errs because “Belluomini does not
teach that each storage device comprises one or more addressable storage
regions that are each assigned a weight based upon an access rate. ” App.
Br. 6. Appellants contend the Examiner errs because “Belluomini is silent
as to giving weight to any storage region of the storage devices 108a-n.” Id.
at 7. This argument is unpersuasive.
We agree with the Examiner that an ordinarily skilled artisan would
have understood Belluomini’s storage devices to have addressable storage
regions. See Final Act. 7; Ans. 4—5. The artisan further would have
understood Belluomini, by disclosing assignment of storage devices to tiers
based on performance, teaches or suggests assigning a storage device to a
tier based on an associated access rate of the storage device. See Final Act.
7; Ans. 3—5; see also Belluomini 1:15—2:34 (Background and Brief
Summary) (discussing performance criteria such as “high random access
capability per gigabyte” for solid-state drives, and using “data access and
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resource information” for configuring different data storage devices into
different performance tiers).
We agree with the Examiner that, by assigning devices to different
tiers, such as one to a “tier with high performance storage” and another to a
“tier with cheaper and more conventional storage” (Belluomini 3:41—65),
media with a fast access rate is weighted to be assigned to one tier and media
with a slow access rate is weighted to be assigned to another tier, as required
by claim 1. See Ans. 3—5. In other words, by disclosing assignment to tiers
based on relative performance, an ordinarily skilled artisan would have
understood that Belluomini teaches assigning a relative performance
“weight” for a storage device (and its constituent region(s)), as recited by
claim l.3
In reply, Appellants argue the Examiner errs by not showing how
Belluomini teaches “each region in a storage media device assigned a
weight based on at least a faster or slower access rate.” Reply Br. 2. This
argument is unpersuasive. The requirement of “each storage media device
comprising one or more addressable storage regions,” as recited, requires a
storage device to have no more than one addressable storage region (i.e.,
“one or more”). The broadest reasonable interpretation, in light of the
Specification, of “a plurality of storage media devices, each storage media
device comprising one or more addressable storage regions, each region
assigned a weight based on at least a fast or slow access rate,” as the skilled
artisan would have understood it, encompasses Belluomini’s tiered storage
3 In view of Appellants’ Specification and claims, “weight” encompasses the
ordinary, relevant dictionary meanings of “importance” and “relative
importance.” See, e.g., www.merriam-webster.com/dictionary/weight;
www.dictionary.com/browse/weight (both last accessed Oct. 19, 2017).
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system in which the storage regions of storage devices are assigned to tiers
with different performance levels. See Ans. 3—5.
We note that, consistent with Appellants’ argument in the Reply Brief,
the storage devices of Appellants’ preferred embodiment in the Specification
and Drawings each have multiple storage regions with different access rates.
See Fig. 1, Spec. 8:14—9:2 (describing the embodiment as a “non-limiting
example”). We decline to limit the scope of claim 1 based on the preferred
embodiment. Appellants’ Specification is clear on this point: “[wjhile this
specification contains many specific implementation details, these should
not be construed as limitations on the scope of any invention or of what may
be claimed, but rather as descriptions of features that may be specific to
particular embodiments of particular inventions.” Spec. 20:8—11; see also
id. at 21:11—12 (“particular embodiments of the subject matter have been
described, but other embodiments are within the scope of the following
claims”).
3. Controller that Receives Commands from a Queue Representing a Load
The Examiner finds the combined disclosures of Belluomini and
Chatterjee teach a storage controller that “receives one or more commands
from a queue representing a load,” as recited. Final Act. 7 (citing
Belluomini Fig. 3; Chatterjee Fig. 3B, 6:15—34). Appellants argue
“Belluomini merely recites receiving data access information and not
commands representing a load. In particular, Belluomini teaches that the
data collector receives data access information for storage extents to be
stored in the storage system. Belluomini is silent as to this data access
information representing a load.” App. Br. 8 (citations omitted). Appellants
further argue “Chatterjee does not teach that one or more commands
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representing a load are received 'from a queue.'1'" Id. at 9. “Rather,
Chatterjee discloses that a command receiver module 310 receives a
command from the client application software coupled at input 308 and
stores the command in the queue 320 to be executed at a later time.” Id.
Appellants also argue “Chatterjee fails to disclose that the commands
received by the command receiver module 310 are commands that ‘represent
a load.’” Id.
The Examiner answers by finding an ordinarily skilled artisan would
have understood that “a Toad’ is merely an amount of work a computing
system performs,” that “an I/O request is a command to read or write to a
given device, which is an amount of work,” and, thus, “an I/O request is ‘a
command representing a load.’” Ans. 6. Acknowledging that Chatterjee
“teaches storing commands in a queue ‘to be executed at a later time,”’ the
Examiner finds that, by receiving these commands back out of the queue at a
later time, Chatterjee, in view of Belluomini, teaches “receiv[ing] one or
more commands from a queue representing a load,” as recited. Id. (citing
Chatterjee 4:58—61).
We agree with the Examiner. An ordinarily skilled artisan would
have understood the receipt of I/O requests by the multi-tier storage system
in Belluomini (see 3:42-43) constitutes receiving commands that represent
an I/O load on the storage system. The artisan also would have understood
Chatterjee’s disclosure of storing of received commands in a queue for later
execution (Chatterjee Figs. 3A—B, 4:5—16)4 also teaches later receiving the
4 We agree with the Examiner “that is extremely common in the art for a
computing device to store received commands in a queue, so that if the
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commands from the queue for execution. Thus, we agree with the Examiner
that the combination of Belluomini and Chatterjee teaches a storage
controller that “receives one or more commands from a queue representing a
load,” as recited. See Final Act. 7; Ans. 5—7; In re Keller, 642 F.2d 413, 425
(CCPA 1981) (explaining the relevant inquiry is 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).
4. Identifying Weighted Storage Regions having Slow and Fast Access Rates
The Examiner finds Kirby teaches “identifying] a first set of
weighted storage regions having a slow access rate in said plurality of
storage media devices and a second set of weighted storage regions having a
fast access rate in said plurality of storage media devices,” as recited. Final
Act. 8 (citing Kirby Fig.l, 6:6—7:46). Appellants argue the Examiner errs
because “Kirby does not explicitly teach identifying a first set of weighted
storage regions that are assigned a weight as required by claim 1.” App. Br.
11.
Even though Kirby discloses that the outermost zone
possesses a higher performance than the innermost zone, Kirby
is silent to as to assigning a weight to any zone (col. 6:65-7:46).
In particular, although the outer zones provide better
performance than inner zones (col. 2:12-33), Kirby does not
teach that a weight is assigned to each zone.
Id. at 12.
This argument is unpersuasive. The Examiner relies on Belluomini
for the requirement that “each region [is] assigned a weight based on at least
a fast or slow access rate,” as recited. Final Act. 7. One cannot show
computing device is occupied with other tasks and cannot immediately
execute the command upon receipt, the command is not lost.” Ans. 6—7.
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nonobviousness by attacking references individually when the rejection is
based on a combination of references. In re Keller, 642 F.2d at 425, 426;
see also In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(explaining each reference cited by the Examiner must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole). The Examiner relies on Kirby only for its teaching of identifying
regions with fast and slow access rates. Ans. 7—8.
Appellants also argue the Examiner errs because ‘“access rate’ is not
even mentioned in the Kirby reference even once. Although TABLE 1 of
Kirby illustrates that various zones possess differing transfer rates (col. 6:50-
65), the transfer rate is not necessarily the same as the access rate.” App. Br.
13 (emphasis omitted). This is also unpersuasive. As the Examiner finds,
and we agree, in view of Appellants’ Specification, which does not define or
otherwise explain the term “access rate,” “[b]oth access rate and transfer rate
may be interpreted as a rate at which data is read from or written to a device.
There is nothing in the claims that precludes the claimed ‘access rate’ from
corresponding to a ‘transfer rate.’” Ans. 8. Furthermore, Kirby must be
interpreted in view Belluomini’s teaching of allocating storage based on
“performance requirements,” which skilled artisans would have understood
encompasses well-known storage device metrics, including access rate. In
re Merck, 800 F.2d at 1097.
5. Computing Average or Discounted Average Sustained Performance Level
The Examiner finds Kirby teaches a storage controller that “computes
an average or discounted average sustained performance level as a function
of said first set of weighted storage regions having said slow access rate and
said second set of weighted storage regions having said fast access rate,” as
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recited. Final Act. 8 (citing Kirby 7:25—46, Fig. 3). Appellants argue the
Examiner errs because “the storage system of Kirby is configured to assume
that an average performance may be achieved by striping the data across the
two zones (col. 7:15-46). However, there is no computation in Kirby of an
average or discounted average.” App. Br. 13. Appellants contend that while
“the higher performance zones are combined with the lower performing
zones in Kirby, . . . there is no showing of computing of the average
sustained performance level,” and that claim 1 “requires computing an
average or discounted average sustained performance level in a manner not
shown in Kirby.” Reply Br. 2.
Appellants’ arguments are unpersuasive. As the Examiner reasons,
and we agree, “[t]he claims do not require a specific number to be computed,
instead, they require ‘comput[ing] an average . . . sustained performance
level.’” Ans. 9 (alterations in original). As the Examiner finds, and we
agree, “[b]y sequentially mapping logical addresses to combine higher
performance zones with lower performing zones, Kirby is computing an
average sustained performance level.” Id. (citing Kirby 9:47—10:43, Figs 3,
5). Kirby teaches determining by computer (computing5) an “average
performance” by alternatively mapping I/O requests to the highest
performance “outer most” and lowest performance “inner most” zones.
Kirby 7:28—33. By similar mapping of intermediate regions (Kirby 7:37^46)
to achieve a “substantially average and consistent performance over all
regions,” an ordinarily skilled artisan would have understood Kirby to teach
5 In view of Appellants’ Specification and claims, “compute” encompasses
its ordinary dictionary meaning of “to use a computer.” See www.merriam-
webster.com/dictionary/compute (last accessed Nov. 6, 2017).
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using the average performance of the outermost and innermost regions as a
baseline average for use in mapping of intermediate regions. Kirby also
teaches alternative embodiments for dynamically determining region
mapping “as particular disk drives are discovered or configured in the
system” (Kirby 9:56—60), which the artisan would have understood teaches
mapping the newly added disk drive regions based on the average
performance in place prior to adding the new drives to the system.
6. Distributing Load over Time to Maintain Computed Average or
Discounted Average Sustained Performance Level
The Examiner finds Kirby teaches a storage controller that
“distributes load over time by alternating weighted storage regions so as to
maintain said computed average or discounted average sustained
performance level,” as recited. Final Act. 9 (citing Kirby 7:25—46, Fig. 1).
Appellants argue the Examiner errs because, in writing to two disk drives,
Kirby teaches that the data is distributed to differing regions of
both disk drives at one time or the same time. Yet, Kirby does
not teach that each region is written to such that it “distributes
[the] load over time,” as the claim requires (claim 1). As such,
Kirby is silent as to a distribution of the load over time.
App. Br. 14—15 (brackets in original).
This is unpersuasive. We agree with the Examiner, who answers by
noting Appellants point to one embodiment of Kirby, and finds:
Kirby contemplates embodiments where only one disk
and one actuator is used ([15:] 16-25), and thus any write of
sequential data cannot be performed simultaneously, and thus
data must be written alternately to the regions, which takes
some amount of time, thus distributing the load over time to
maintain a computed average performance level.
Ans. 10.
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Conclusion
Accordingly, for the above reasons, we sustain the rejection of claim 1
and, along with it, the rejections of claims 2—13, for which Appellants offer
no substantive separate arguments.
DECISION
For the above reasons, we affirm both the provisional rejection of
claims 1—13 for nonstatutory obviousness-type double patenting and the
rejection of claims 1—13 under § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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