Ex Parte Coronado et al

Patent Trial and Appeal Board

May 23, 2016

12710116 (P.T.A.B. May. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121710,116 02/22/2010
73908 7590 05/25/2016
GRIFFITHS & SEATON PLLC (IBM)
3813 E. Kenwood St.
MESA, AZ 85215
FIRST NAMED INVENTOR
Juan A. CORONADO
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.
TUC920090091US1 (0210) 8062
EXAMINER
GOLDSCHMIDT, CRAIG S
ART UNIT PAPER NUMBER
2132
NOTIFICATION DATE DELIVERY MODE
05/25/2016 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@gs-iplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUAN A. CORONADO, LISA R. MARTINEZ,
and RAUL E. SABA
Appeal2015-000430
Application 12/710, 116
Technology Center 2100
Before MAHSHID D. SAADAT, JOHN A. EVANS, and ALEX S. YAP,
Administrative Patent Judges.
EV ANS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1-3, 5-9, 11, 12, 14, 16-19, and 21-
23. App. Br. 4. Claims 4, 10, 13, 15, and 20 are cancelled. Id.
1 The Appeal Brief identifies International Business Machines Corporation,
as the real party in interest. App. Br. 2.
Appeal2015-000430
Application 12/710, 116
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.2
STATEMENT OF THE CASE
The claims relate to systems, methods, and computer program
products for providing operating system (O/S) redundancy in a computing
system. See Abstract.
INVENTION
Claims 1, 9, and 16 are independent. The claims have not been
argued separately and therefore stand or fall together. 37 C.F.R.
§ 41.37(c)(l)(iv). An understanding of the invention can be derived from a
reading of exemplary Claim 1, which is reproduced below with some
formatting added:
1. A system providing operating system redundancy,
compnsmg:
a host computing device;
a plurality of physical memory devices, each memory
2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed April 9, 2014, "App. Br."), the Reply Brief
(filed September 30, 2014, Reply Br."), the Examiner's Answer (mailed
August 14, 2014, "Ans."), the Final Action (mailed October 22, 2013, "Final
Act."), and the Specification (filed February 2, 2010, "Spec.") for their
respective details.
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Appeal2015-000430
Application 12/710, 116
device storing a respective operating system; and
a sub-loader coupled between the host computing device
and the plurality of physical memory devices such that the host
computing device sees the plurality of physical memory devices
and the sub-loader as a single memory device,
wherein the sub-loader is configured to:
comprise a memory device connected to one of the
plurality of physical memory devices to present the plurality of
physical memory devices to the host computing device as a
single memory device,
designate a first logical unit device as a primary logical
unit device, the first logical unit device being a first type of
memory device having a first mirroring scheme,
determine that the first logical unit device is unresponsive,
remove the designation of primary logical unit device
from the first logical unit device,
designate a second logical unit device as a new primary
logical unit device after removal of the primary logical unit
device designation from the first logical unit device, the second
logical unit device being a second type of memory device
selected to have a different mirroring scheme than the first
mirroring scheme and to have a different redundant array of
independent disks (RAID) configuration than the first logical
unit device, and
maintain a first table for each of the first and second
logical unit devices for tracking out-of-synch sectors on each
respective logical unit device relative to sectors on the primary
logical unit device, and maintain a second table indicating which
of the first and the second logical unit devices is the primary
logical unit device,
wherein removing the primary logical unit device
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Appeal2015-000430
Application 12/710, 116
designation from the first logical unit device and designating the
second logical unit device as the new primary logical unit device
is transparent to the host computing device.
References and Rejections
The Examiner relies upon the prior art as follows:
Yamasaki
Nunn et al.
("Nunn")
Ross
Cannon et al.
("Cannon")
Galloway et al.
("Galloway")
US 2004/0236984 Al
US 6,988, 194 B2
US 2007/0168690 Al
US 2007/0185934 Al
US 2009/0307426 Al
The claims stand rejected as follows:
Nov. 25, 2004
Jan. 17,2006
July 19, 2007
Aug. 9, 2007
Dec. 10, 2009
1. Claims 1-3, 5-8, and 21-23 stand rejected under 35 U.S.C. § 103(a)
as obvious over Ross, Nunn, Galloway, and Yamasaki. Final Act. 2-
12.
2. Claims 9, 12, 14, 16, and 18 stand rejected under 35 U.S.C. § 103(a)
as obvious over Ross, Galloway, and Yamasaki. Final Act. 12-17.
3. Claims 11, 17, and 19 stand rejected under 35 U.S.C. § 103(a) as
obvious over Ross, Galloway, Yamasaki, and Cannon. Final Act. 17-
19.
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Appeal2015-000430
Application 12/710, 116
ANALYSIS
We have reviewed the rejections of Claims 1-3, 5-9, 11, 12, 14, 16-
19, and 21-23 in light of Appellants' arguments that the Examiner erred.
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)(l)(iv). We are not persuaded that Appellants identified
reversible error. Upon consideration of the arguments presented in the
Appeal Brief and Reply Brief, we agree with the Examiner that all the
pending claims are unpatentable over the cited combination of references.
We adopt as our own the findings and reasons set forth in the rejection from
which this appeal is taken and in the Examiner's Answer. We provide the
.. 11 • 1 '. ' 1 • 1 1 • 1 ' 1 1 1 • ... ' 1 rouowmg exprnnauon w mgnngm ana aaaress spec1nc argumencs ana
findings primarily for emphasis.
We consider Appellants' arguments seriatim, as they are presented in
the Appeal Brief, pages 11-18.
CLAIMS 1-3, 5-8, AND 21-23: OBVIOUSNESS OVER
Ross, NUNN, GALLOWAY, AND YAMASAKI
Appellants argue these claims as a group and contend they are each
patentable in view of the limitations of Claim 1. App. Br. 13.
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Appeal2015-000430
Application 12/710, 116
Transparent
The Examiner finds that Ross teaches a sub-loader ("HACM 240")
coupled as an interface between the host computing device and the plurality
of memory devices. Final Act. 3. The Examiner finds the HACM can
change the "primary" designation from the first to the second logical device
such that the transition occurs "automatically and/or seamlessly," i.e., is
"transparent" to the host computing system. Final Act. 4. Moreover, the
transition is "not perceptible," i.e., is "transparent" to the users of the host
computing device. Id.
Appellants contend that the terms "automatically" and "seamlessly,"
as used by Ross, indicate the user does not know that the HACM has
switched from the primary to the secondary virtual partition. App. Br. 12.
Appellants argue that because the switch occurs "automatically," Ross
therefore teaches that the host computing device knows of the switch and
authorizes and/or actually performs the switch. Thus the switching in Ross
is not "transparent" to the host. Id. In essence, Appellants are advocating
that "transparent" be construed as unseen or undetectable.
The Examiner finds the term "transparent" is not defined, either in the
claims, or in the Specification; nor have Appellants limited their definition
of "transparent" to something unseen or undetectable. Ans. 23.
Appellants reply the claims recite the host "sees" the sub-loader and
the plurality of physical memory devices as a single memory device. Reply
Br. 2. Because the switching of the designation as "primary" occurs behind
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Application 12/710, 116
the sub-loader, such switching is "transparent" to the host. Id. Appellants
contend their Specification and claims use the tem1 "transparent"
consistently as would a person of ordinary skill in the art. Reply Br. 6
(citing whatis.techtarget.com).
We are not persuaded that Appellants' specification or claims define
the term "transparent." We are also not persuaded that the Examiner's
definition is overbroad nor unreasonable. "Computer programs and
procedures that are said to be transparent are typically those that the user is -
or could be -unaware of." Whatis.techtarget.com (cited by Appellants)
(emphasis added). See Reply Br. 6. Even using Appellants proffered
dictionary definition of the term, Appellants can point to no evidence that
the user of the Ross system is aware of any of the details of the storage
' • ., '. ..t. 11 ' .. .1 .1 ' .1 ., 1 .. • sys1em m us operauons. Appeuams runner argue 1nm 1ne swncn or pnmary
designation must also be transparent to the host system. App. Br. 15.
However, Appellants likewise proffer no evidence that the HACM of Ross is
any more or less "transparent" to the Ross host than the claimed sub-loader
is to the claimed host. In re Huang, 100 F.3d 135, 139--40 (Fed. Cir. 1996)
(arguments of counsel cannot take the place of factually supported objective
evidence); Attorney argument is not evidence. In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974); nor can it take the place of evidence lacking in
the record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977).
Lawyer's arguments and conclusory statements, which are unsupported by
factual evidence, are entitled to little probative value. In re Geisler, 116
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Application 12/710, 116
F.3d 1465, 1470 (Fed. Cir. 1997).
We are not persuaded the Examiner errs in finding claims 1-3, 5-8,
and 21-23 as obvious over Ross, Nunn, Galloway, and Yamasaki.
CLAIMS 9, 11, 12, 14, AND 16-19: OBVIOUSNESS OVER ROSS,
YAMASAKI, AND CANNON
Appellants contend Claims 9, 11, 12, 14, and 16-19 each recite
elements similar to the recitations of Claim 1 and are therefore patentable for
the same reasons. App. Br. 14. In view of our foregoing discussion, we are
not persuaded the Examiner erred in finding Claims 9, 11, 12, 14, and 16-19
as obvious over Ross, Nunn, Yamasaki, and Cannon.
DECISION
The rejection of Claims 1-3, 5-9, 11, 12, 14, 16-19, and 21-23 under
35 U.S.C. § 103 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)(l )(iv).
AFFIRMED
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