Ex Parte Blea et alDownload PDFPatent Trial and Appeal BoardDec 31, 201211670321 (P.T.A.B. Dec. 31, 2012) 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. 11/670,321 02/01/2007 David Randall Blea TUC920060096US1 6905 7590 12/31/2012 Brian C. Kunzler Kunzler and Associates Suite 600 8 East Broadway Salt Lake City, UT 84111 EXAMINER HOCKER, JOHN P ART UNIT PAPER NUMBER 2158 MAIL DATE DELIVERY MODE 12/31/2012 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 DAVID RANDALL BLEA, ERROL JAY CALDER, GREGORY EDWARD McBRIDE, TODD BENJAMIN SCHLOMER, and JOHN JAY WOLFGANG ____________________ Appeal 2010-008210 Application 11/670,321 Technology Center 2100 ____________________ Before ROBERT E. NAPPI, HUNG H. BUI, and LYNNE E. PETTIGREW, Administrative Patent Judges. BUI, Administrative Patent Judge. DECISION ON APPEAL Appellants1 seek our review under 35 U.S.C. § 134(a) of the Examiner’s Final Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 Real Party in Interest is International Business Machines Corporation. Appeal Brief filed December 14, 2009 (“App. Br.”). Appeal 2010-008210 Application 11/670,321 2 I. STATEMENT OF THE CASE Appellants’ Invention Appellants’ invention relates to a system and method to synchronize a remote backup database included in a remote data processing system with a primary database included in a primary data processing system. See generally Spec. ¶0008, ¶0010 and Abstract. Claims on Appeal Claims 1, 6, 15, and 20 are independent. Claim 1 is representative of Appellants’ invention, as reproduced below with disputed limitations emphasized: 1. An apparatus to synchronize a remote database, the apparatus comprising: a monitor module of a primary data processing system configured to monitor an update from a database application to a primary table of a primary database of the primary data processing system as the update is communicated through an application server and prior to being received by the primary database, wherein the application server is configured to manage access to the primary database by the database application; a construction module of the primary data processing system configured to receive the monitored update and construct a Structured Query Language (SQL) command in text format that is equivalent to the update; a transmitter module of the primary data processing system configured to transmit the SQL command from the primary data processing system to a remote data processing system over a network, the remote data processing system comprising a backup database having a backup table, the Appeal 2010-008210 Application 11/670,321 3 backup table comprising a logical mirror image of the primary table of the primary database; and an update module of the remote data processing system configured to apply the SQL command to the backup table of the backup database. Evidence Considered The prior art relied upon by the Examiner in rejecting the claims on appeal is: Wiss U.S. 2004/0098425 A1 May 20, 2004 Examiner’s Rejections (1) Claims 1-20 stand provisionally rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1-20 of co-pending U.S. Application No. 11/670,336.2 (2) Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as being obvious over Wiss and the “basic knowledge” or “common sense” possessed by persons having ordinary skill in the art of “database mirroring.”3 2 Claims 1-20 also stand provisionally rejected for statutory double patenting as claiming the same invention as that of claims 1-20 of co- pending U.S. Application No. 11/670,336. See App. Br. 6-9. However, the Examiner has withdrawn the rejection as per Examiner’s Answer. See Ans. 15. 3 Likewise, claims 1-20 stand alternatively rejected under 35 U.S.C. § 102(b) as being anticipated by Wiss. See App. Br. 5 and 9-16. However, the Examiner has requested the Board to only affirm the §103 rejection of claims 1-20 as per Examiner’s Answer. See Ans. 16. As such, we will consider only the §103 rejection of claims 1-20 on this appeal, and treat the §102 rejection as being withdrawn by the Examiner. Appeal 2010-008210 Application 11/670,321 4 II. ISSUES Based on Appellants’ arguments, the dispositive issues on appeal are: (1) Whether the Examiner has erred in finding that claims 1-20 are unpatentable under the judicially created doctrine of obviousness-type double patenting over claims 1-20 of co-pending U.S. Application No. 11/670,336 (App. Br. 9); and (2) Whether the Examiner has erred in rejecting claims 1-20 under 35 U.S.C. § 103(a) because Wiss fails to disclose or suggest several features of Appellants’ claimed invention, including: (i) monitor an update to a primary table of a primary database “prior to being received by the primary database” as recited in claim 1 (App. Br. 11-12; Reply Br. 4-6) (emphasis added); (ii) transmit an SQL command from a primary data processing system to a remote data processing system over a network where the SQL command is supplied to a backup table, as recited in claim 1 (App. Br. 12-13; Reply Br. 6-7); (iii) construct an SQL command at a primary data processing system based on a monitored update, as recited in claim 1 (App. Br. 13; Reply Br. 8); (iv) “wherein monitoring the update, constructing the SQL command, transmitting the SQL command, and applying the SQL command is performed independently of an application of the update to the primary table” as recited in claim 6 (App. Br. 13-14; Reply Br. 8-9) (emphasis added); and Appeal 2010-008210 Application 11/670,321 5 (v) “wherein the primary database and the backup database are of different types” as recited in claims 14 and 17 (App. Br. 14-15; Reply Br. 9-10) (emphasis added). III. DISCUSSION (1) Provisional Non-Statutory Double Patenting Rejection With respect to the provisional non-statutory double patenting rejection, Appellants provide an explanation of the differences between claims 1-20 of the instant application and claims 1-20 of the co-pending application, Serial No. 11/670,336. App. Br. 6-9. In response thereto, the Examiner provides a claim chart supporting an assertion that the conflicting claims are not patentably distinct from each other. Ans. 4-7. However, we note that the co-pending Application 11/670,336 was subsequently issued on January 5, 2010, as U.S. Patent No. 7,644,112, and that claims 1-17 as issued in U.S. Patent No. 7,644,112 are now different and are narrower than the original claims 1-20 as previously pending in co-pending Application 11/670,336. Because of the differences in claims 1-20 of the co-pending Application 11/670,336 and claims 1-17 of the issued U.S. Patent No. 7,644,112, we cannot sustain the Examiner's provisional rejection of claims 1-20 under the judicially created doctrine of obviousness-type double patenting. (2) Obviousness Rejection of Claims 1-20 under 35 U.S.C § 103(a) With respect to independent claim 1, Appellants contend that Wiss fails to disclose or suggest several features of Appellants’ claimed invention. Specifically, Appellants argue that: (1) Wiss does not monitor an update to a Appeal 2010-008210 Application 11/670,321 6 primary table of a primary database “prior to being received by the primary database” as recited in claim 1 (App. Br. 11-12; Reply Br. 4-6) (emphasis added); (2) Wiss does not transmit an SQL command from a primary data processing system to a remote data processing system over a network where the SQL command is supplied to a backup table, as recited in claim 1 (App. Br. 12-13; Reply Br. 6-7); and (3) Wiss does not construct an SQL command at a primary data processing system based on a monitored update, as recited in claim 1 (App. Br. 13; Reply Br. 8). We have considered Appellants’ arguments but do not find them persuasive of error by the Examiner. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). First, ¶0057 of Wiss describes: [t]he replication solution of the present invention provides a means for capturing the changes made to the primary database and sending those changes to the mirrored (replicate) site in a manner simultaneous with the changes being made at the primary database. Changes to a database are made on a transaction-by-transaction basis. A transaction typically contains some number of database operations such as SQL INSERT, UPDATE, DELETE, DDL, or Procedure operations. When a transaction is committed at the database (i.e., at the primary database) all of the operations within the transactions are atomically applied to the database. In a typical database system, multiple transactions can be in the process of being applied to the database at any given time. This results in the operations of any given transaction being interwoven with the operations of other concurrent transactions. Accordingly, it is important that the commit order of transactions is preserved at the replicate database. It is also important that once changes are made to the primary database, the replication solution must ensure that these changes are available and can be applied at the replicate database no matter what might happen to the primary database or the site at which the primary database is located . . . . Appeal 2010-008210 Application 11/670,321 7 Paragraph 0057 of Wiss is described in the context of a replication solution in which disk mirroring technology is combined with logical replication technology to capture database changes at a primary database and apply those changes to a replicate database so that: (1) no database operations are lost if the primary database stops working, and (2) the replicate database can still be used simultaneously for decision support and other purposes while data is being replicated from the primary database to the replicate database. See ¶0054 and ¶0055 of Wiss. As correctly found by the Examiner, ¶0057 of Wiss describes a replication solution that captures (i.e., monitors) changes (i.e., an update) to a primary table of a primary database and sending those changes to a backup table of a remote database (mirrored site) in a manner simultaneously with the changes being made at the primary database, i.e., in the manner “prior to being received by the primary database” as recited in claim 1. (Emphasis added); Ans. 17-18. Nevertheless, Appellants argue that “two events occurring simultaneously do not occur in a manner one prior to the other” and that “simultaneously occurring events cannot be defined to be the same as one event occurring prior to the other event.” Reply Br. 4. However, we find this argument unavailing. “Every patent application and reference relies to some extent upon knowledge of persons skilled in the art to complement that disclosed . . . .” In re Bode, 550 F.2d 656, 660 (CCPA 1977) (quoting In re Wiggins, 488 F.2d 538, 543 (CCPA 1973)). Those persons “must be presumed to know something” about the art “apart from what the references disclose.” In re Jacoby, 309 F.2d 513, 516 (CCPA 1962). Persons skilled in Appeal 2010-008210 Application 11/670,321 8 the art of “database replication” are presumed to understand that any update (i.e., changes) to the primary database monitored or captured by the replication solution is necessarily inclusive of an update communicated via an application server at the primary data and “prior to being received by the primary database” as recited in claim 1 (emphasis added); otherwise, an update cannot be captured or monitored, especially when an SQL command is an SQL UPDATE. See ¶0057 of Wiss. Second, as correctly found by the Examiner, ¶0057 of Wiss describes different types of SQL transactions such as INSERT, UPDATE, and DELETE, and that once changes are made to the primary database as per an SQL transaction, these changes can be applied at the replicate database. Ans. 19-20. In other words, any (SQL) transaction applied to the primary database is also applied to the replicate database. See ¶0056 of Wiss. Nevertheless, Appellants argue that Wiss does not construct an SQL command at the primary database and transmit the same over a network from the primary database to the remote replicate database; rather, an SQL command is constructed at the remote replicate database based on other information sent over the network. Reply Br. 7. However, when analyzing the evidence the Examiner may employ common sense not inconsistent with the ordinary level of knowledge and skill in the art. Perfect Web Techs. v. InfoUSA, Inc., 587 F.3d 1324, 1328-29 (Fed. Cir. 2009). Common sense suggests that an SQL can be constructed either (1) at the primary database and transmitted to the remote replicate database, or (2) at the remote replicate database. However, regardless of how an SQL command is constructed and applied to the remote replicate database, we agree with the Examiner’s finding and conclusion that Appellants’ claimed SQL Appeal 2010-008210 Application 11/670,321 9 application to the replicate database, i.e., transmission of an “SQL command from a primary data processing system to a remote data processing system over a network” “where the SQL command is supplied to a backup table” would have been obvious to one skilled in the art of database replication as discussed in ¶0012, ¶0056 and ¶0057 of Wiss. Ans. 10-11, 19-20 (emphasis added). Third, and for the same reasons discussed supra, we also agree with the Examiner’s finding that capturing changes requires monitoring and that an SQL command is constructed at the primary database based on the update. Ans. 21; also see ¶0076 of Wiss (where an SQL transaction such as INSERT, UPDATE and/or DELETE is constructed at the primary database). With respect to claim 6, Appellants argue that Wiss further fails to disclose or suggest the limitation “wherein monitoring the update, constructing the SQL command, transmitting the SQL command, and applying the SQL command is performed independently of an application of the update to the primary table.” App. Br. 13-14; Reply Br. 8-9 (emphasis added). We disagree. As correctly found by the Examiner, ¶0012 of Wiss describes a remote replicate database used as a duplicate or mirror copy of a primary database. In addition, ¶0076 and ¶0079 of Wiss describe the posting of an SQL transaction at the primary database and the application of the SQL transaction at the remote replicate database so that all transactions posted at the primary database can be replicated at the remote replicate database. As such, we agree with the Examiner’s finding and conclusion that Appellants’ claimed limitation would have been obvious to one skilled in the art of database replication. Appeal 2010-008210 Application 11/670,321 10 In view of these reasons, we do not find any error in the Examiner’s rejection of independent claim 1 as well as independent claims 6, 15, and 20, and their respective dependent claims 2-5, 7-13, 16, 18-19, which were not separately argued. See 37 C.F.R. § 41.37 (c)(1)(vii). Therefore, we sustain the Examiner’s obviousness rejection of claims 1-13, 15-16 and 18-20. With respect to dependent claims 14 and 17, Appellants argue that Wiss does not disclose or suggest that “the primary database and the backup database are of different types.” App. Br. 14-15; Reply Br. 9-10 (emphasis added). Paragraph 0062 of Wiss, as cited by the Examiner, only discloses that, as a preferred embodiment, the database system (including a primary database and a remote replicate database) is implemented as a Sybase® Adaptive Server® Enterprise database, and may alternatively be implemented as another type of database or file system. However, nowhere in Wiss is there any disclosure or suggestion that the primary database and the backup database are of different types, as recited in dependent claims 14 and 17. As such, we do not sustain the Examiner’s rejection of claims 14 and 17, particularly, in view of ¶0007 and ¶0089 of Appellants’ Specification. V. CONCLUSION On the record before us, we conclude that the Examiner has erred in rejecting claims 1-20 under the judicially created doctrine of obviousness- type double patenting as being unpatentable over claims 1-20 of co-pending U.S. Application No. 11/670,336. In addition, we conclude that the Examiner has erred in rejecting claims 14 and 17 under 35 U.S.C. § 103(a) Appeal 2010-008210 Application 11/670,321 11 as being obvious over Wiss and the “basic knowledge” or “common sense” possessed by persons having ordinary skill in the art of "database mirroring." However, we conclude that the Examiner has not erred in concluding that the teachings of Wiss would have rendered obvious Appellants’ claims 1-13, 15-16, and 18-20 under 35 U.S.C. § 103(a). VI. ORDER As such, we affirm the Examiner’s rejection of claims 1-13, 15-16, and 18-20 under 35 U.S.C. § 103(a) as being unpatentable over Wiss. However, we reverse the Examiner’s rejection of claims 14 and 17 under 35 U.S.C. § 103(a) and the Examiner's provisional rejection of claims 1-20 under the judicially created doctrine of obviousness-type double patenting. 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) (2011). AFFIRMED-IN-PART ke Copy with citationCopy as parenthetical citation