Ex Parte Fang et al

Patent Trial and Appeal Board

Mar 20, 2017

13596990 (P.T.A.B. Mar. 20, 2017)

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.
13/596,990 08/28/2012 Ru Fang ARC920110060US2 1071
80330 7590 03/22/2017
Knn7ler T aw nmim/ARP EXAMINER
50 Broadway
Ste 1000
YEN, SYLING
Salt Lake City, UT 84101 ART UNIT PAPER NUMBER
2166
NOTIFICATION DATE DELIVERY MODE
03/22/2017 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):
jeff@kunzlerlaw.com
lauren@kunzlerlaw.com
docket @ kunzlerlaw .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RU FANG, BIN HE, HUI-I HSIAO, and
CHANDRASEKARAN MOHAN
Appeal 2016-005047
Application 13/596,990
Technology Center 2100
Before ALLEN R. MacDONALD, DANIEL J. GALLIGAN, and
AMBER L. HAGY, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-005047
Application 13/596,990
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—6. Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
Exemplary Claim
Exemplary claim 1 under appeal reads as follows (bracketing added):
1. A method for executing and supporting transactions, the
method comprising:
[(A)] receiving a transaction comprising a command and data;
[(B)] writing the data to a transaction manager on a persistent
memory device, wherein the transaction manager maintains a status of
the transaction and reference to entries within the memory that are
manipulated by the transaction;
[(C)] creating a log of the transaction, wherein the log is in a
first hash directory; and
[(D)] committing a copy of the first hash directory to a second
hash directory, wherein the second hash directory is on the persistent
memory device.
Rejections
1. The Examiner rejected claims 1^4 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Flynn et al. (US 2010/0211737
Al, pub. August 19, 2010) and Bauman et al. (US 6,192,450 Bl; iss. Feb.
20, 2001).1
1 Separate patentability is not argued for claims 2—\. Except for our ultimate
decision, claims 2—A are not discussed further herein.
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Application 13/596,990
2. The Examiner rejected claims 1,3,5, and 6 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Vogan et al. (US
8,019,925 Bl, iss. September 13, 2011) and Bauman.2
Appellants ’ Contentions
1. Appellants contend that the Examiner erred in rejecting claim 1
under 35 U.S.C. § 103(a) because:
The Examiner acknowledges that Flynn does not teach creating
a log in a first hash directory or committing a copy of the first
hash directory to a second hash directory on a persistent memory
device. Hence, the Examiner relies on Bauman as purportedly
teaching these limitations. But Bauman does not teach
committing a copy of the first hash directory to a second hash
directory, at least because Bauman does not teach a second hash
directory.
App. Br. 5 (emphasis added).
There is no teaching in Bauman of the backup cache
directory memory 36 storing a copy of the hash table 42. Thus,
the backup cache directory memory 36 is not disclosed to include
the hash table 42 from the cache directory memory 34.
. . . Although the cache directory memory 34 includes a hash
table 42, Bauman does not teach anything from the hash table
42 being stored in the CL records 40. Rather, Bauman
specifically shows in Fig. 3 the hash table 42 including entries
80 which store CL record pointers.
App. Br. 6 (emphases added).
2 Separate patentability is not argued for claims 3, 5, and 6. Except for our
ultimate decision, claims 3, 5, and 6 are not discussed further herein.
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Application 13/596,990
2. Appellants also contend that the Examiner erred in rejecting claim 1
under 35 U.S.C. § 103(a) because:
Similar to the asserted combination of Flynn and Bauman, the
combination of Vo Ran and Bauman does not teach committing a
copy of the first hash directory to a second hash directory on a
persistent memory device.
The reasoning in the Office Action acknowledges that
Vogan does not teach creating a log in a first hash directory or
committing a copy of the first hash directory to a second hash
directory on a persistent memory device. Hence, the reasoning
in the Office Action relies on Bauman as purportedly teaching
creating a log in a first hash directory and committing a copy of
the first hash directory to a second hash directory. However, as
explained above, the teachings of Bauman are insufficient to
teach committing a copy of the first hash directory to a second
hash directory on a persistent memory device, at least because
Bauman does not teach a second hash directory.
App. Br. 7 (emphasis added).
3. Appellants also contend that the Examiner erred in rejecting claim 1
under 35 U.S.C. § 103(a) because:
[T]he Examiner’s assertion that the Examiner is relying on the
“broadest reasonable interpretation” does not remedy the lack of
teaching by Bauman.
App. Br. 8.
4. Appellants also contend that the Examiner erred in rejecting claim 1
under 35 U.S.C. § 103(a) because:
Appellants respectfully respond to the Examiner’s Answer.
Specifically, Appellants respectfully disagree that Vogan
teaches the claim limitation as set forth in the Examiner’s
Answer on pages 4-5. . . . The master addressing table 500 and
hash table 504 of Vogan does not teach the first hash directory
and second hash directory of the claims and thus does not teach
committing a copy of the first hash directory to a second hash
directory, wherein the second hash directory is on the persistent
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Application 13/596,990
memory device. The master addressing table 500 and hash table
504 of Vogan is not equivalent to the hash directory of the current
application and therefore cannot teach the limitation as outlined
in the Examiner’s Answer. The hash directory includes a log of
the transaction including a command and data as is recited in
claim 1. As such it is not reasonable to conclude that the master
addressing table 500 and hash table 504 of Vogan teaches the
hash directory as set forth in the claim.
Reply Br. 4—5 (emphases added).
Issues on Appeal
Did the Examiner err in rejecting claim 1 as being obvious over the
combination of Flynn and Bauman?
Did the Examiner err in rejecting claim 1 as being obvious over the
combination of Vogan and Bauman?
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments (Appeal Brief and Reply Brief) that the Examiner has erred. We
disagree with Appellants’ conclusions.
As to Appellants’ above contention 1, we disagree. Contrary to
Appellants’ assertion, the Examiner does not “acknowledge[] that Flynn
does not teach creating a log in a first hash directory or committing a copy of
the first hash directory to a second hash directory on a persistent memory
device.” Rather, the Examiner finds that Flynn discloses these limitations.
Final Act. 3. The Examiner explains these findings at pages 3—8 of the Final
Action. The Examiner then states that “[ajlthough Flynn substantially
teaches the claimed invention, Flynn does not explicitly indicate wherein the
log is in a first hash directory.” Final Act. 8 (Examiner emphasis omitted,
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Panel emphasis added). The Examiner then cites to Bauman as explicitly
teaching “creating a log of the transaction, wherein the log is in a first hash
directory” (Final Act. 8) and “committing a copy of the first hash directory
to a second hash directory, wherein the second hash directory is on the
persistent memory device” (Final Act. 9). Although the Examiner finds that
the teachings of Bauman are explicit, the Examiner’s use of any teachings of
Bauman is structured as being redundant to the teachings of Flynn. That is,
contrary to Appellants’ argument, the Examiner does not rely solely on
Bauman as teaching these limitations. Therefore, although we agree with
Appellants’ argument as to Bauman, any failure of the Bauman reference
alone is insufficient to show that the Examiner erred as to the rejection.
As to Appellants’ above contention 2, we disagree. Appellants
present the same argument as to the Vogan and Bauman combination as they
argue in above contention 1 for the Flynn and Bauman combination. Again,
contrary to Appellants’ assertion, the Examiner finds that Vogan discloses
the argued limitations. Final Act. 15. Therefore, we reach the same result
for the same reasons.
As to Appellants’ above contention 3, we disagree. Again, the
Examiner does not rely on the Bauman reference in the manner argued by
Appellants, and any failure of the Bauman reference alone is insufficient to
show that the Examiner erred as to either rejection. Therefore, the Examiner
does not need to remedy any lack of a teaching by Bauman.
As to Appellants’ above contention 4, Appellants present for the first
time a new argument against the use of Vogan in the rejection of claim 1.
Contrary to Appellants’ assertion that this new argument is in response to
the Examiner’s Answer, we conclude that the Answer merely repeats the
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analysis of the Final Action. Therefore, rather than this new argument being
a timely response to something new in the Answer, this argument is an
untimely attempt to present a further response to the Final Action. In the
absence of a showing of good cause by Appellants, we decline to consider
an argument raised for the first time in the Reply Brief. This is because, as
the Examiner has not been provided a chance to respond, and in the absence
of a showing of good cause by Appellants as to why these arguments were
not raised in the Appeal Brief, these arguments would be deemed waived.
See 37 C.F.R. § 41.41(b)(2) (2012); In re Hyatt, 211 F.3d 1367, 1373 (Fed.
Cir. 2000) (noting that an argument not first raised in the brief to the Board
is waived on appeal); Ex parte Nakashima, 93 USPQ2d 1834, 1837 (BPAI
2010) (informative) (explaining that arguments and evidence not timely
presented in the principal Brief, will not be considered when filed in a Reply
Brief, absent a showing of good cause explaining why the argument could
not have been presented in the Principal Brief); Ex parte Borden, 93
USPQ2d 1473, 1477 ( BPAI 2010) (informative) (“Properly interpreted, the
Rules do not require the Board to take up a belated argument that has not
been addressed by the Examiner, absent a showing of good cause.”).
Appellants have provided this record with no such showing of good cause.
In this case, even if we were to consider Appellants’ above
contention 4, it would not convince us the Examiner erred. First, Appellants
assert “[t]he master addressing table 500 and hash table 504 of Vogan is not
equivalent to the hash directory of the current application.” Reply Br. 5. We
disagree. Contrary to Appellants’ contention, we conclude the hash
directory includes a log of the transaction including a command and data.
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Application 13/596,990
If element 1100 determines that the received request is a write
request, element 1120 determines whether the disk drive is
presently ready to write the requested data.
Vogan, col. 13,11. 47-49.
Element 1130 is then operable to insert a new LB A/IB A mapping
entry in the master addressing table corresponding to the new
disk block (s) about to be written.
Vogan, col. 14,11. 14—17.
Master addressing table 500 may comprise multiple sections
including, for example, indirection sub-table 502, indirection
hash table 504, and system variables 506.
Vogan, col. 14,11. 36—38.
[Indirection hash table for 504 provides a rapid index to sections
of the larger interaction sub-table 502.
Vogan, col. 14,11. 44-46.
The indirection sub-table 502 (of FIGS. 5 and 7) may grow and
shrink as portions of the disk drive storage medium are utilized.
Vogan, col. 16,11. 19-21.
The received write transaction of Vogan modifies the master
addressing table thus modifying sub-table 502 and hash table 504, which is a
log of the write transactions. We conclude nothing more particular is
required by the receiving and creating steps of claim 1, nor do Appellants
argue for any more particular requirement.
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Application 13/596,990
CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 1—6 as being
unpatentable under 35 U.S.C. § 103(a).
(2) Claims 1—6 are not patentable.3
DECISION
The Examiner’s rejections of claims 1—6 are 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
3 As the Examiner has shown that claims 1—6 are not patentable, we do not
further address whether claims 1—6 should be rejected on the ground of
nonstatutory obviousness-type double patenting as not being patentably
distinct from claims 1—6 of co-pending US Application No. 13/460,013, now
U.S. Patent US 9,471,622 B2, issued October 18, 2016. However, should
there be further prosecution of these claims, the Examiner’s attention is
directed to our concern that, although one set of claims is directed to a
method and the other is directed to a computer program product, these
claims are substantially the same.
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