Ex Parte D et al

Patent Trial and Appeal Board

Dec 6, 2016

11541963 (P.T.A.B. Dec. 6, 2016)

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.
11/541,963 10/02/2006 Roy P. D'Souza 82948611 3615
56436 7590 12/08/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
BLACK, LINH
ART UNIT PAPER NUMBER
2163
NOTIFICATION DATE DELIVERY MODE
12/08/2016 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):
hpe.ip.mail@hpe.com
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROY P. D'SOUZA and T.M. RAVI
Appeal 2015-004019
Application 11/541,963
Technology Center 2100
Before CAROLYN D. THOMAS, JON M. JURGOVAN, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection of claims 1—3 and 6—53, all the pending claims
in the present application. Claims 4 and 5 are canceled. See App. Br. 2. We
have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART and, pursuant to 37 C.F.R. § 41.50(b),
designate a new ground of rejection.
The present invention relates generally to generating at least one data
surrogate using information of data and numerous data changes received
from at least one data source. See Abstract.
Appeal 2015-004019
Application 11/541,963
Claim 1 is illustrative:
1. A method comprising:
receiving a copy of original data at a first server
that includes a shadow database used as part of a shadowing
process, wherein the original data is stored at a second server;
receiving delta data at the first server in a plurality
of instances, the delta data including data of an incremental and
differential difference between the original data; and
dynamically generating and maintaining an
updated version of the copy at the first server by applying the
delta data to the copy as the delta data is received at the first
server, wherein the applying the delta data includes determining
a state of the updated version of the copy including preventing
the shadow database of the first server from entering a
recovered state and applying the delta data to the copy at any
time by allowing the shadow database to enter a first
application state before modifying a portion of the shadow
database to indicate a second application state of the shadow
database to thereby allow the applying of the delta data at any
time to the copy.
Appellants appeal the following rejections:
Rl. Claims 1—3, 6—14, 16—36, 38-43, 45, and 47—53 are rejected
under 35 U.S.C. § 102(b) as being anticipated by Wahlert (US
2006/0053147 Al, Mar. 9, 2006);
R2. Claims 15, 44, and 46 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wahlert and Lent (US 2005/0246345 Al, Nov. 3,
2005); and
R3. Claim 37 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wahlert and Whiting (US 2002/0107877 Al, Aug. 8,
2002).
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Appeal 2015-004019
Application 11/541,963
ANALYSIS
Claims 1—3, 6—13, 16—24, 26—32, 34—36, 38—43, and 47—53
Issue 1: Did the Examiner err in finding Wahlert discloses
dynamically generating and maintaining an updated version of the copy, as
set forth in claim 1?
Appellants contend that in Wahlert “[t]he creation of an occasional
replica is an occasional rather than dynamic . . . [and] the term dynamically
is used to indicate that changes are applied to the copy as they are generated
rather than occasionally, as described in Wahlert” (App. Br. 12).
The Examiner finds that “[t]he limitation ‘dynamic’ does not require
to be in real time” (Ans. 2) and Walhert discloses “[u]pon receipt of a
change record, the replication agent located at the storage location applies
the record to the replica data” (id., citing Wahlert’s 1284) (emphasis
omitted). We agree with the Examiner.
We refer to, rely on, and adopt the Examiner's findings and
conclusions set forth in the Answer. Our discussions here will be limited to
the following points of emphasis.
Although Appellants contend that “the term dynamic is used to
indicate that changes are applied to the copy as they are generated” (see
App. Br. 12) (emphasis added), we note that claim 1 is written more
narrowly. For instance, claim 1 recites, inter alia, dynamically generating
and maintaining an updated version of the copy ... as the delta data is
received at the first server (see claim 1) (emphasis added). In other words,
claim 1 requires updating the data at the first server as the delta data is
received at the first server, not necessarily when the changes are actually
generated, as proffered by Appellants. In claim 1, there is no temporal link
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Appeal 2015-004019
Application 11/541,963
between generating changes and when they are received at the first server.
As such, claim 1 even reads on updating the copy some variable time after
the data has changed, as long as the data is updated when changes are
actually received at the storage location.
As identified by the Examiner (see Ans. 2), Wahlert discloses an
incremental backup whereby “[rjecords and metadata are transmitted from
the change log 4307 to the storage location 4305 . . . Upon receipt of the
change record, the replication agent located at the storage location 4305
applies the record to the replica data 4317” (1284). In other words, Wahlert
updates the replica data when the change record is received at the storage
location, consistent with claim 1.
Therefore, we find unavailing Appellants’ contention that Wahlert
does not disclose a dynamic generation of an updated version of the copy, as
required by claim 1.
Accordingly, we sustain the Examiner’s rejection of claim 1.
Appellants’ arguments regarding the Examiner’s rejection of independent
claim 16, 50, and 51 rely on the same arguments as for claim 1, and
Appellants do not argue separate patentability for the dependent claims (see
App. Br. 11—14). We, therefore, also sustain the Examiner’s rejection of
claims 2, 3, 6—13, 16—24, 26—32, 34—36, 38—43, and 47—53.
Claims 14, 25, and 33
Issue 2: Did the Examiner err in finding that Wahlert discloses
invoking an engine of the second server, as set forth in claim 14?
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Appeal 2015-004019
Application 11/541,963
Appellants contend that Wahlert invokes “an engine known as a data
protector, outside of the production location ... the applying in Wahlert
does not invoke a second engine” (App. Br. 14).
The Examiner finds that Wahlert discloses a “common engine that
executes tasks . . . apply change records for the log file to [the] replica
database” (Ans. 5). We agree with the Examiner.
Although we agree with Appellants that Wahlert’s data protector, i.e.,
engine, is outside of the production location (see Fig. 51), we note that claim
14 does not necessarily require that the engine be “inside” of the production
location, merely “an engine of the second server” (see claim 14) (emphasis
added). We find that a broad, but reasonable, interpretation of “an engine of
the second server” is an engine related to the second server.
As noted by the Examiner supra, Wahlert discloses a common engine,
i.e., a data protector, being used by both the production location and the
storage location (see Fig. 51). Thus, we find unavailing Appellants’
contention that Wahlert does not invoke an engine of the second server
given that Wahlert’s data protector engine is being used by, and thus related
to, the production location.
Accordingly, we sustain the Examiner’s rejection of claim 14.
Appellants’ arguments regarding the Examiner’s rejection of dependent
claims 25 and 33 rely on the same arguments as for claim 14 (see App. Br.
14). We, therefore, also sustain the Examiner’s rejection of claims 25 and
33.
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Appeal 2015-004019
Application 11/541,963
Claim 45
Issue 3: Did the Examiner err in finding that Wahlert discloses
generating in near real-time, as set forth in claim 45?
Appellants contend that “the saving of change logs or occasional
creation of a replica of data for a system at a particular time is not the same
as dynamically generating and maintaining an updated version ... let alone
the additional near-real time” (App. Br. 16). Appellants further contend that
“near real time refers only to immediate capture and shipping of transaction
logs” (Reply Br. 3).
The Examiner finds that “[t]he limitation ‘near’ is broad. Wahlert
discloses . . . replicate volumes and folders every 30 minutes ... It is
equivalent to ‘near real-time’ because copies generated and transferred for
backup is based on at least a data change at the production location” (Ans.
6).
Although Appellants contend that “near real time refers only to
immediate capture and shipping of transaction logs” (see Reply Br. 3),
Appellants fail to direct our attention to such a specific definition within
their Specification. Instead, Appellants’ Specification merely states “the
modifications that are occurring to the current transaction log are being
immediately captured and shipped over to the utility server for application.
This could improve the maintenance of the data surrogate from near real­
time to real-time” (24:13—16). However, we find that such statements fail to
indicate a standard for measuring a near real-time event.
When a word of degree is used, such as the phrase “near real-time,” it
is necessary to determine whether the specification provides some standard
for measuring that degree. See Seattle Box Co., Inc. v. Industr. Crating &
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Appeal 2015-004019
Application 11/541,963
Packing, Inc., 731 F.2d 818, 826 (Fed. Cir. 1984). Here, Appellants have
not directed our attention to a disclosure in the Specification which explains
an objective standard to define what constitutes “near real-time.”
Here, the Examiner finds that the broadest reasonable interpretation of
“near real-time” may include Wahlerf s copies updated every hour, or
replicate volumes and folders every 30 minutes, or nearly continuous
temporal versions arising from persisting point-in-time copies, and/or in
response to a user or another individual making a change to protected data
(see Ans. 6, citing various portions of Wahlert). Although each of the
Examiner’s aforementioned interpretations could subjectively be seen by one
of ordinary skill in the art as representing “near real-time,” Appellants’
Specification does not provide any objective definition for the relative term
“near real-time” that would permit us to reasonably ascertain the metes and
bounds of the claim protection being sought.
For the foregoing reasons, then, we exercise our authority under 37
C.F.R. § 41.50(b), rejecting dependent claim 45 as indefinite under 35
U.S.C. § 112 12. Because dependent claim 45 is so indefinite that
“considerable speculation as to [the] meaning of the terms employed and
assumptions as to the scope of such claims” is needed, we do not address the
merits of the Examiner’s rejection under 35 U.S.C. § 102(e) over Wahlert.
See In re Steele, 305 F.2d 859, 862 (CCPA 1962) (holding that the examiner
and the board were wrong in relying on what at best were speculative
assumptions as to the meaning of the claims and basing a prior-art rejection
thereon). We therefore reverse this rejection pro forma.
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Appeal 2015-004019
Application 11/541,963
Rejection under § 103(a) of claims 15, 37, 44, and 46
Appellants have not presented separate patentability arguments or
have reiterated substantially the same arguments as those previously
discussed for patentability of claim 1 above (see App. Br. 16—18).
Therefore, claims 15,37, 44, and 46 fall with the claims from which they
depend. See 37 C.F.R. §41.37(c)(l)(vii).
DECISION
We reverse the Examiner’s § 102(e) rejection of claim 45 and
pursuant to our authority under 37 C.F.R. § 41.50(b), we enter a new ground
of rejection for claim 45 under 35U.S.C. § 112, second paragraph.
We affirm the Examiner’s § 102(e) rejection of claims 1—3, 6—14, 16—
36, 38-43, and 47—53 and we also affirm the § 103(a) rejections of claims
15,37, 44, and 46.
Section 41.50(b) provides “[a] new ground of rejection pursuant to
this paragraph shall not be considered final for judicial review.” Section
41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an
appropriate amendment of the claims so rejected or
new Evidence relating to the claims so rejected, or
both, and have the matter reconsidered by the
examiner, in which event the prosecution will be
remanded to the examiner. The new ground of
rejection is binding upon the examiner unless an
amendment or new Evidence not previously of
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Application 11/541,963
Record is made which, in the opinion of the
examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner
reject the claims, appellant may again appeal to the
Board pursuant to this subpart.
(2) Request rehearing. Request that the
proceeding be reheard under § 41.52 by the Board
upon the same Record. The request for rehearing
must address any new ground of rejection and state
with particularity the points believed to have been
misapprehended or overlooked in entering the new
ground of rejection and also state all other grounds
upon which rehearing is sought.
Further guidance on responding to a new ground of rejection can be
found in the MPEP § 1214.01.
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-IN-PART; 37 C.F.R, $ 41.50(b)
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