Ex Parte Coekaerts

Board of Patent Appeals and Interferences

Mar 31, 2008

10305483 (B.P.A.I. Mar. 31, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte WIM A. COEKAERTS
____________

Appeal 2007-2489
Application 10/305,483
Technology Center 2100
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Decided: March 31, 2008
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Before HOWARD B. BLANKENSHIP, ALLEN R. MACDONALD, and
ST. JOHN COURTENAY III, Administrative Patent Judges.

BLANKENSHIP, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-30, of which claims 1-5, 7-20, and 22-30 remain
rejected. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

Appeal 2007-2489
Application 10/305,483

Background
A cluster is a group of independent servers that collaborate as a single
system. (Spec. ¶ [0002].) Each node in a cluster needs to keep other nodes
in that cluster informed of its health and configuration. This has been done
by periodically broadcasting a network message, called a heartbeat, across a
network. (Id., ¶ [0003].) In prior systems, the cluster interconnect has been
built by installing network cards in each node, typically using a low-
cost/slow-speed Ethernet card, or a high-cost/high-speed proprietary
interconnect. Appellant, instead, uses a low-cost/high-speed interconnect
card, in accordance with IEEE 1394 protocol (id., ¶ ¶ [0004] - [0006]),
which is specified by an industry standard (¶ ¶ [0032] - [0034]). Claim 1 is
illustrative.
1. A heartbeat mechanism for a cluster including a plurality of nodes,
comprising:

a quorum file for receiving heartbeat messages from the plurality of
nodes; and

a network controller for connecting the quorum file to the plurality of
nodes where the network controller provides communication with the
quorum file in accordance with the IEEE 1394 protocol.

The Examiner relies on the following references as evidence of
unpatentability.
Wipfel US 6,353,898 B1 Mar. 5, 2002
Chan US 2002/0131423 A1 Sep. 19, 2002
Sun US 2003/0061340 A1 Mar. 27, 2003
Bernier US 6,754,171 B1 Jun. 22, 2004
Bommareddy US 6,779,039 B1 Aug. 17, 2004

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Claims 1, 3-5, 9-14, 16, 17, 19, 20, and 22-30 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Chan and Wipfel.1
Claim 2 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Chan, Wipfel, and Bernier.
Claims 7 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Chan, Wipfel, and Sun.
Claims 8 and 18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Chan, Wipfel, and Bommareddy.
Claims 6 and 21 are objected to as being dependent upon a rejected
claim, but allowable if rewritten in independent form. (Ans. 11.)
Claims 31-35 have been canceled.

Representative claims
Based on Appellant’s arguments in the Appeal Brief, we will consider
certain claims as representative in our review of the rejections. Appellant’s
arguments guide our selection of claims, rather than the headings in the
Appeal Brief. See 37 C.F.R. § 41.377(c)(1)(vii).

Claim 1
Claim 1 is rejected under § 103(a) over Chan and Wipfel.
Chan describes a distribution server cluster 406 (Fig. 6). Chan ¶
[0065]. Each distribution server 504 periodically registers a “heartbeat” in a

1 Claims 1 and 9 are also “objected to” (Ans. 3), without any cited basis in a
statute or regulation.
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control unit database in storage system 414. Periodically, each distribution
server 504 will check the database for the heartbeats of other distribution
servers. Id., ¶ [0067].
The Examiner finds that Chan meets all requirements of claim 1 but
for the network controller providing communication with the quorum file “in
accordance with the IEEE 1394 protocol.” The Examiner turns to Wipfel for
the teaching that communication within a cluster in accordance with the
protocol was well known and conventional (col. 6, ll. 26-31), concluding
that it would have been obvious to combine the teachings such that the
communication described by Chan is in accordance with the 1394 protocol.
(Ans. 4.)
Appellant submits that Chan does not disclose the claimed network
controller. (App. Br. 13.) That Chan does not disclose the claimed network
controller is not in controversy, as the rejection is not for anticipation.
Appellant next contends (id.) that Chan does not disclose a quorum
file being connected by “that network controller” to a plurality of nodes. If
Appellant believes that Chan does not describe a quorum file, as claimed,
connected to a “plurality of nodes,” we agree with the Examiner that the
artisan would consider each distribution server to be a node (as is storage
system 414) on the network depicted in Figure 6 of the reference.
Further, in the relied-upon portion of Chan, the reference describes
distribution server clusters in Figure 6 (¶ ¶ [0064-0068]). Wipfel teaches
that in clusters having several servers 102 (Fig. 1), nodes communicate using
interconnects 112 (Fig. 2) with protocols that include those “in accordance
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with the IEEE 1394 protocol,” as claimed. Wipfel col. 5, ll. 59-67; col. 6, ll.
26-37.
As the Examiner indicates, Chan describes a switch 412 (Fig. 6)
connecting nodes on the network but does not describe the details of the
communication between nodes. Wipfel describes an interconnect 112 (Fig.
2) on each side of a network switch 204 to effect communication between
nodes.
Appellant submits that Wipfel’s invention relates to “remote memory
probes” that are deemed to improve over conventional heartbeat signals
(e.g., col. 9, ll. 13-37). (App. Br. 13-14.) The rejection, however, is based
on the use of heartbeat signals as described by Chan in view of Wipfel’s
teachings directed to conventional protocols for communication between
nodes. “The use of patents as references is not limited to what the patentees
describe as their own inventions or to the problems with which they are
concerned. They are part of the literature of the art, relevant for all they
contain.” In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (quoting In re
Lemelson, 397 F.2d 1006, 1009 (CCPA 1968)).
Further, we agree with Appellant (Reply Br. 2-4) to the extent that
many different types of network communication protocols may be used.
The present inquiry, however, is directed to the particular protocol that
Appellant claims as part of the invention. That the artisan might have had
many different protocols from which to choose does not establish the non-
obviousness of selecting one from among those that were conventional. We
also note that open-ended claim 1 (“comprising”) does not prevent the
quorum file from being resident on a network node, which may be
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considered a different node from the “plurality of nodes” that the claim
recites.
Appellant alleges that the Final Rejection “neither ascertains nor
reports on the level of ordinary skill in the art.” (App. Br. 23.) The
complaint is answered by the Examiner at page 22 of the Answer: “Based on
the prior art and the explanation of the combination of references provided
above, examiner has ascertained what would have been obvious to one [of]
ordinary skill in the art.”
The references demonstrate that the artisan was capable of making the
proposed combination, applying an industry standard protocol to a heartbeat
mechanism having a quorum file for receiving heartbeat message from a
plurality of nodes. See In re GPAC, Inc., 57 F.3d 1573, 1579 (Fed. Cir.
1995) (USPTO board did not err in adopting the approach that the level of
skill in the art was best determined by the references of record). Appellant
has not adduced evidence -- nor even offered any explanation -- in support
of why the combination would have been beyond the skill of the ordinary
artisan.
Moreover, a person having ordinary skill in the art uses known
elements for their intended purpose. Anderson’s-Black Rock, Inc. v.
Pavement Salvage Co., 396 U.S. 57 (1969) (radiant-heat burner used for its
intended purpose in combination with a spreader and a tamper and screed).
“[W]hen a patent ‘simply arranges old elements with each performing the
same function it had been known to perform’ and yields no more than one
would expect from such an arrangement, the combination is obvious.” KSR
Int’l Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1740 (2007) (quoting Sakraida v.
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Ag Pro, Inc., 425 U.S. 273, 282 (1976)). Appellants have provided no
evidence tending to show that using an industry standard protocol for
communication was “uniquely challenging or difficult for one of ordinary
skill in the art.” See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d
1157, 1162 (Fed. Cir. 2007) (citing KSR, 127 S. Ct. at 1740-41).
We conclude that the Examiner has established a prima face case for
obviousness for the subject matter as a whole of claim 1, which stands
unrebutted. We sustain the rejection of claim 1. Claims 9, 22, 25, and 29
fall with claim 1, which appear under separate headings but are not
separately argued in the Appeal Brief.2

Claim 19
Claim 19 is rejected under § 103(a) over Chan and Wipfel.
Appellant submits that “registering a heartbeat in a control unit
database sounds more like storing a record in a general purpose database
rather than allocating a quorum file.” (App. Br. 17.) The Examiner
responds that since the control unit database in Chan constitutes a file or area
within a storage system or device, the reference discloses allocating a
quorum file for storing status messages retrieved from nodes in the cluster.
(Ans. 18.)
We sustain the rejection of claim 19, as no error has been shown in
the Examiner’s finding. Moreover, Appellant has not shown that storing a
heartbeat message in “a general purpose database” is something different

2 Claims 22 and 25 depend from independent claim 19. Claim 29 depends
from independent claim 26. We also sustain the rejection of claims 19 and
26, infra.
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from allocating a quorum file. According to the claim, a quorum file is a file
“for storing status messages received from nodes in the cluster,” which Chan
has.

Claim 26
Claim 26 is rejected under § 103(a) over Chan and Wipfel.
Apart from reliance on the arguments presented against the rejection
of claim 1, Appellant alleges that “neither of the references discloses
communicating a quorum file to a distribution server.” (App. Br. 19.)
We disagree. Chan discloses that “[p]eriodically, each distribution
server 504 will check the database for the heartbeats of other distribution
servers.” Chan ¶ [0067].
We sustain the rejection of claim 26.

Claim 5
Claim 5 is rejected under § 103(a) over Chan and Wipfel.
The Examiner finds that Chan maintains a “node map” because the
database provides the status of each of the distribution servers or nodes.
(Ans. 4-5.)
Appellant submits that a node map relates to defining the topology of
the nodes, while heartbeats relate to a node’s health or status, referring to
instant Specification paragraph [0034]. (App. Br. 15.)
Specification paragraph [0034] states, “[e]ach node maintains a node
map 180 that keeps track of the current state of the network
topology/configuration.” The Specification appears to describe an
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embodiment, rather than set forth a definition of “node map.” Our
reviewing court has repeatedly warned against confining the claims to
specific embodiments described in the specification. Phillips v. AWH Corp.,
415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc).
Moreover, Appellant does not indicate why maintaining the status of
each of the distribution servers or nodes (as in Chan) is not “keeping track”
of the current state of the network topology or configuration. In any event,
claim 5 does not recite “network topology” or “configuration.” The claim
recites that the node map is “for identifying active nodes,” which Chan does.
We are therefore not persuaded of error in the rejection of claim 5,
and sustain the rejection.

Claim 10
Claim 10 is rejected under § 103(a) over Chan and Wipfel.
With respect to claim 10, Appellant submits that Chan describes “a
distribution server 504” but nothing else. (App. Br. 16.)
Chan describes distribution servers 504 accessing data on storage
volumes 603 in shared storage system 414. Chan ¶ [0065]. Shared storage
system 414 also maintains heartbeats in a control unit database. Chan ¶
[0067].
Chan thus supports the Examiner’s findings that the reference
indicates that one or more shared files reside in the shared storage system
414 and that the quorum file is maintained in at least one (separate) storage
volume. (Ans. 5-6.)

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We sustain the rejection of claim 10.

Claim 12
Claim 12 is rejected under § 103(a) over Chan and Wipfel.
The claim recites a “first network” for providing communication
between the shared files and the plurality of nodes, and a “second network”
for providing communication between the quorum file and the plurality of
nodes.
Appellant argues that “Appellant fails to see a disclosure of the two
claimed networks in the cited paragraphs” of Chan (App. Br. 17). However,
what Appellant sees (or fails to see) is not the test for obviousness.
Claim 12 does not place limitations on the two networks, rather than
the providing of communication between the named file or files and the
nodes. The claim thus could be read as setting forth two logical networks,
rather than two separate physical networks. As we have indicated (in regard
to claim 10), the Examiner’s findings that Chan describes communication on
a network between a plurality of nodes and both of shared files and a
quorum file have not been demonstrated to be erroneous.
In any event, the Examiner finds that the “first” and the “second”
network may the “the same” network. That appears to be the case; see
depending claim 14, “wherein the first network and the second network are
the same network.”
We sustain the rejection of claim 12.

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Claim 2
Claim 2 stands rejected under § 103(a) over Chan, Wipfel, and
Bernier. The claim recites that the network controller of claim 1 “is an IEEE
1394 card.” The Examiner adds Bernier to the basic combination of Chan
and Wipfel. Bernier depicts (Fig. 1) a physical embodiment of a network
card 106. The Examiner finds that, in essence, to implement the IEEE 1394
protocol one uses an IEEE 1394 card. (Ans. 9, 19-20.)
Appellant submits that “[w]hile Bernier does disclose a network
device having network cards, simply finding a reference with the term
‘network controller’ in it does not satisfy the standard for motivation to
combine.” (App. Br. 20.)
On this record, we are not persuaded that one skilled in the art would
have found it non-obvious to use an IEEE 1394 card to implement the IEEE
1394 protocol. A person having ordinary skill in the art uses known
elements for their intended purpose. See Anderson’s-Black Rock, Inc. v.
Pavement Salvage Co., 396 U.S. 57 (1969).
We sustain the rejection of claim 2.

Claim 8
Claim 8 is rejected under § 103(a) over Chan, Wipfel, and
Bommareddy. The claim recites that the cluster of claim 1 “is a database
cluster.” The Examiner adds Bommareddy to the basic combination of Chan
and Wipfel. Bommamareddy describes a database server cluster 120 (Fig.
1).

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Appellant submits that “merely reciting the term cluster is not enough
to prove the obviousness of combining specific features with Chan or Wipfel
because they also recite the term cluster.” (App. Br. 21.)
The teachings of Bommareddy may be considered merely cumulative
with respect to claim 8, as Chan describes a “database cluster” for all that the
claim requires. As we have indicated, Chan discloses a distribution server
cluster that accesses data in a shared storage system (¶ [0065]) that includes
a control unit database (¶ [0067]). Moreover, each distribution server 504
has job queue images stored in a database in storage system 414. Chan ¶
[0066].
We sustain the rejection of claim 8.

Remainder of the claims
We have considered representative claims to the extent that claims
have been separately argued. Appellant has not demonstrated any claim to
be rejected in error. We thus sustain the rejection of the claims that we have
not listed in our discussion.

CONCLUSION
The rejection of claims 1-5, 7-20, and 22-30 under 35 U.S.C. § 103(a)
is affirmed.

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

pgc

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