Ex Parte Dixon et al

Board of Patent Appeals and Interferences

Mar 27, 2009

10627858 (B.P.A.I. Mar. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte WALTER G. DIXON, ROBERT A. MACKIE,
THOMAS R. BAKITA, DWIGHT R. FRYE JR.,
JOHN G. WHITE, and KEITH R. SCHOMBURG
__________

Appeal 2008-4313
Application 10/627,858
Technology Center 2100
__________

Decided:1 March 27, 2009
__________

Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and
STEPHEN C. SIU, Administrative Patent Judges.

SIU, Administrative Patent Judge.

DECISION ON APPEAL

1 The two month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 1–26. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.
The Invention
The disclosed invention relates generally to data maintenance and
more particularly to a system and method for providing redundant data load
sharing in a distributed network (Spec. 1).
Independent claim 1 is illustrative:
1. A method for providing redundant data load sharing in
a distributed network, comprising:
receiving an original entry;
storing the original data entry in a first one of a plurality
of nodes;
generating a replicated data entry from the original data
entry;
storing the replicated data entry in a second one of the
plurality of nodes;
identifying a failure of either of the first one or the
second one of the plurality of nodes;
generating a re-replicated data entry in the non-failed
first or second one of the plurality of nodes for storage at a third
one of the plurality of nodes in response to the failure in the
first or second one of the plurality of nodes.
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The References
The Examiner relies upon the following references as evidence in
support of the rejections:
Ohran 5,812,748 Sep. 22, 1998
Merchant 2004/0230862 A1 Nov. 18, 2004

The Rejections
1. The Examiner rejects claims 1–3, 9, 11–14, 16–19, and 22–24 under
35 U.S.C. § 103(a) as being unpatentable over Merchant.
2. The Examiner rejects claims 4–8, 10, 15, 20, 21, 25, and 26 under 35
U.S.C. § 103(a) as being unpatentable over Merchant in view of
Ohran.

ISSUE #1
The Examiner finds that because “the removed node [of Merchant]
could be failing” (Ans. 15), the node would provide “potentially erroneous
data for the replication” (id.) which “could have a negative impact on the
redundant storage reliability on which the Merchant invention is based”
(id.). Thus, the Examiner finds that it would have been obvious to one of
ordinary skill in the art “to have generated this replicated data from one of
the non-failed nodes” (id.).
Appellants assert that “there is no suggestion or motivation in the
Merchant, et al. to modify it as proposed by the Examiner” (App. Br. 7) and
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that “a reasonable expectation of success has not been shown by the
Examiner” (id. at 8).
Did Appellants demonstrate that the Examiner erred in finding that it
would have been obvious to one of ordinary skill in the art to modify the
Merchant reference?

ISSUE #2
The Examiner finds that Merchant discloses “generating a re-
replicated data entry for storage at a third one of the plurality of nodes in
response to the failure in the first or second one of the plurality of nodes
(Merchant ¶ 0132 – ¶ 0137 . . .).” (Fin. Rej. 3). The Examiner further finds
that, while “Merchant fails to explicitly disclose the re-replicated data entry
being generated from a non-failed node” (id.), that “[i]t would have been
obvious to one skilled in the art at the time of the invention that Merchant
would have generated re-replicated data from the non-failed first or second
one of the plurality of nodes to provide to the third of the plurality of nodes”
(id.).
Appellants assert that Merchant is “concerned with merely relocating
data from a node that is being selected for removal and not to data
replication for redundant sharing as provided in the claimed invention”
(App. Br. 9) and does not teach or suggest all of the claim limitations of the
invention.
Did Appellants demonstrate that the Examiner erred in finding that
Merchant discloses or suggests generation of re-replicated data entry for
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storage at a third one of the plurality of nodes, from a non-failed node, in
response to the failure in the first or second one of the plurality of nodes?

ISSUE #3
The Examiner finds that “[i]t would have been obvious to one skilled
in the art at the time of the invention to include the storage of at least one
occurrence of Ohran in the invention of Merchant” (Fin. Rej. 11).
Appellants argue that there is no suggestion or motivation to combine
Merchant and Ohran (App. Br. 10) and that “a reasonable expectation of
success has not been shown by the Examiner” (Reply Br. 13).
Did Appellants demonstrate that the Examiner erred in finding that it
would have been obvious to one skilled in the art at the time of the invention
to combine Merchant and Ohran?

ISSUE #4
Appellants argue that “the Ohran, et al. patent fails to provide any
capability to re-replicate data entries as required by the claimed invention”
(Reply Br. 14).
Did Appellants demonstrate that the Examiner erred in finding that the
combination of Merchant and Ohran discloses or suggests re-replication of
data entries?

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FINDINGS OF FACT
The following Findings of Facts (FF) are shown by a preponderance
of the evidence.
1. Merchant discloses “techniques for storage environments in which
redundant devices are provided or in which data is replicated”
(¶ [0023]).
2. Merchant teaches that the fault-tolerant capabilities of a storage
environment that uses redundant devices with replicated data are
realized by being able to read data from more than one node
(¶ [0027]).
3. Merchant teaches that if a node develops a fault, redundancy should
be preserved by storing data that is available on that node onto
another node (¶¶ [0132]–[0137] and Fig. 12).
4. Merchant specifically addresses the event of a node developing a
fault that does not cause the node to fail completely, disclosing that
the non-failed node itself can provide the data for re-replication onto
another node (¶¶ [0132]–[0137] and Fig. 12).
5. Ohran discloses an “invention to provide tolerance to disk faults even
though the computer of a server computer system has failed” (col. 3,
ll. 19–21).
6. Ohran discloses that when a node in a redundant storage system fails,
redundantly stored data entries on non-failed nodes are preserved
(col. 7, ll. 44–65 and col. 8, ll. 1–6).
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7. The purpose of a fault-tolerant storage system that stores data
redundantly is to provide for access to redundantly stored data in the
event of failure in a component in the fault-tolerant storage system
(See Merchant ¶ [0003] (“[A] feature commonly desired for
enterprise-class storage systems is that the storage system should not
lose data or stop serving data in circumstances that fall short of a
complete disaster.”); and Ohran, col. 1, ll. 21–29 (“It is often
desirable to provide continuous operation of computer systems,
particularly file servers . . . . To achieve this continuous operation, it
is necessary for the computer system to be tolerant of software and
hardware problems or faults. This is generally done by having
redundant computers and redundant mass storage systems, such that
a backup computer or disk drive is immediately available to take
over in the event of a fault.”)).

PRINCIPLES OF LAW
35 U.S.C. § 103(a)
Section 103(a) forbids issuance of a patent when “the
differences between the subject matter sought to be patented
and the prior art are such that the subject matter as a whole
would have been obvious at the time the invention was made to
a person having ordinary skill in the art to which said subject
matter pertains.”

KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007).

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“What matters is the objective reach of the claim. If the claim extends
to what is obvious, it is invalid under § 103.” Id. at 419. In KSR, the
Supreme Court emphasized “the need for caution in granting a patent based
on the combination of elements found in the prior art,” Id. at 415, and
discussed circumstances in which a patent might be determined to be
obvious. Id. at 415–16 (citing Graham v. John Deere Co., 383 U.S. 1, 12
(1966)). The Court reaffirmed principles based on its precedent that “[t]he
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” Id. The
operative question in this “functional approach” is thus “whether the
improvement is more than the predictable use of prior art elements according
to their established functions.” Id. at 417.

ANALYSIS (ISSUE #1)
We agree with the Examiner that it would have been obvious to one of
ordinary skill in the art, given Merchant’s fault-tolerant storage system that
enables data to be read from more than one node (FF 2), to re-replicate data
from any node (including non-failed nodes) hosting the redundant data (Ans.
15), particularly given the fact, as the Examiner finds and Appellants do not
contest, that non-failed nodes are less likely to provide erroneous data as
compared to failed nodes. Appellants have failed to provide any evidence to
show that re-replicating data in Merchant’s redundant data storage system
from any particular node (i.e., a node that is failing vs. a node that is not
failing) would have entailed anything more than mere rearrangement of
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known elements to achieve an expected result (i.e., successful re-replication
of data from a node) or would have been “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
1741).
For at least the aforementioned reasons, we conclude that Appellants
have not sustained the requisite burden on appeal in providing arguments or
evidence persuasive of error in the Examiner’s rejection of claims 1-26 with
respect to issue #1.

ANALYSIS (ISSUE #2)
The conclusion of obviousness can be based on interrelated teachings
of multiple patents, the effects of demands known to the design community
or present in the marketplace, and the background knowledge possessed by a
person having ordinary skill in the art and an obviousness “analysis need not
seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ.” KSR, 550 U.S.
at 418. See also Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H.
Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006). As such, even assuming
Appellants’ contention to be true that “there is no disclosure in the
Merchant, et al. application” (App. Br. 9) of re-replication of data from a
non-failed node, we nevertheless find Appellants’ arguments unavailing
because we find that the Examiner has shown sufficient evidence to support
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the contention that one skilled in the art at the time of the invention would
have found it obvious to extend Merchant to generate re-replicated data
entries for storage at a third one of the plurality of nodes, from a non-failed
node, in response to the failure in the first or second one of the plurality of
nodes.
In addition, Merchant teaches identifying a failure on a node (FF 3)
where the failure on the node does not cause the node to fail completely (FF
4) and thus discloses identifying a failure on a node. Merchant also discloses
re-replicating data from that node when the node failure does not cause the
node to fail completely, such a node being a “non-failed node.” Thus, we
find that, contrary to Appellants’ contention, Merchant discloses or suggests
identifying a failure of a node and re-replicating data in a non-failed node
(i.e., the node identified as failing).
For at least the reasons provided, we find that Appellants have failed
to provide arguments or evidence persuasive of error in the Examiner’s
rejections of claims 1-26 with respect to issue #2.

ANALYSIS (ISSUE #3)
Appellants argue that “there is no suggestion or motivation to
combine” (Reply Br. 12) the Merchant and Ohran references because “the
Examiner has not provided any proper reasoning, let alone objective
reasoning” (id. at 13) for such a combination. We disagree.
The Examiner finds that both “Merchant and Ohran are concerned
with ensuring fault tolerance through data replication (Merchant ¶ 2 and
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Ohran col. 1, ll. 15–19)” (Ans. 19; FF 1 and 5) and that since the purpose of
a fault-tolerant storage system is to provide for access to redundantly stored
data in the event of failure in a component in the fault-tolerant storage
system, it would have been obvious to one of ordinary skill in the art (Ans.
19; FF 7) to combine the Merchant and Ohran references to, for example,
“maintain availability during an event in which the resources are stressed”
(Ans. 19–20; FF 7). Appellants have failed to provide a logical rationale
supporting the contention that the Examiner’s stated reasons supporting
obviousness of the combination of the Merchant and Ohran references are
indeed “baseless and subjective” (Reply Br. 12). In the absence of such a
showing, we cannot agree with Appellants.
For at least the aforementioned reasons, we conclude that Appellants
have not sustained the requisite burden on appeal in providing arguments or
evidence persuasive of error in the Examiner’s rejection of claims 4-8, 10,
15, 20, 21, 25, and 26 with respect to issue #3.

ANALYSIS (ISSUE #4)
The Examiner relies on Merchant’s disclosure of re-replication of
data. Therefore, we find unavailing Appellants’ argument that Ohran
supposedly fails to disclose this feature. One cannot show nonobviousness
by attacking references individually where the rejections are based on
combinations of references. In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
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For at least the aforementioned reasons, we conclude that Appellants
have not sustained the requisite burden on appeal in providing arguments or
evidence persuasive of error in the Examiner’s rejection of claims 4-8, 10,
15, 20, 21, 25, and 26 with respect to issue #4.

CONCLUSION OF LAW
Based on the findings of facts and analysis above, we conclude that
Appellants have failed to demonstrate that the Examiner erred in:
1. finding that it would have been obvious to one of ordinary skill
in the art to modify the Merchant reference (issue #1),
2. finding that Merchant discloses or suggests generation of re-
replicated data entry for storage at a third one of the plurality of nodes, from
a non-failed node, in response to the failure in the first or second one of the
plurality of nodes (issue #2),
3. finding that it would have been obvious to one skilled in the art
at the time of the invention to combine Merchant and Ohran (issue #3), and
4. finding that the combination of Merchant and Ohran discloses
or suggests re-replication of data entries (issue #4).

DECISION
We affirm the Examiner’s decision rejecting claims 1–26 under 35
U.S.C. § 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)(1)(iv).
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AFFIRMED

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