Ex Parte Fineberg

Patent Trial and Appeal Board

Feb 25, 2014

11247475 (P.T.A.B. Feb. 25, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SAMUEL A. FINEBERG
___________

Appeal 2011-003882
Application 11/247,475
Technology Center 2100
____________

Before ERIC B. CHEN, JOHN A. EVANS, and
PATRICK M. BOUCHER, Administrative Patent Judges.

CHEN, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

Appeal 2011-003882
Application 11/247,475

2
Appellant requests rehearing under 37 C.F.R. § 41.52 of our Decision
on Appeal entered September 30, 2013 (“Decision”) where we affirmed the
Examiner’s final rejection of claims 1-6, 8-14, 16-22, 24, 25, 29, and 32-37.
The Request for Rehearing is denied.

DISCUSSION
Appellant argues that “[t]he characterization by the Decision on
Appeal that the arguments presented in the Appeal Brief for each of
Groups 2, 3, 4, and 5 are mere conclusory statements that Stakutis and
Autrey do not teach the features of these dependent claims is clearly
inaccurate.” (Req. for Reh’g 2.) In particular, Appellant argues that “the
Board has overlooked such detailed arguments made in the Appeal Brief
with respect to Group 2” and that pages 11-12 of Appellant’s Appeal Brief
“are more than ‘a conclusory statement that Stakutis and Autrey do not teach
the features of these dependent claims without a sufficient explanation as to
why these dependent claims are patentable over Stakutis and Autrey.’” (Id.)
Page 11 of Appellant’s Appeal Brief summarizes Stakutis as follows:
Paragraph [0031] of Stakutis refers to a retention rule that
contains a file identifier specifying either a file name or an
application or user. According to ¶ [0032] of Stakutis, a new
versioned file is generated if it is determined that the retention
rule contains the file identifier of the applicable file name,
source application, or user.
(App. Br. 11.) Immediately following this passage, Appellant’s Appeal
Brief states:
There is absolutely no hint in these passages of Stakutis
regarding determining whether the data operation triggers the at
least one versioning threshold by scanning the log for a close
operation. The concept of a close operation is simply not
Appeal 2011-003882
Application 11/247,475

3
mentioned in Stakutis, and more fundamentally, there is no
concept of scanning a log that logs a data operation that
modifies at least one file of a file system for such close
operation to determine whether the data operation triggers the at
least one versioning threshold.
(Id.) However, instead of presenting arguments pointing out with
particularity how the limitations of claim 2 are distinguishable over Stakutis,
Appellant merely provides a conclusory statement that Stakutis does not
teach the features of this dependent claim. In particular, Appellant merely
states that “[t]here is absolutely no hint in these passages of Stakutis 
regarding determining whether the data operation triggers the at least one
versioning threshold by scanning the log for a close operation,” as cited in
dependent claim 2, without a sufficiently detailed explanation of the
differences between the limitations of claim 2 and Stakutis.
Similarly, pages 11-12 of Appellant’s Appeal Brief summarize Autrey
as follows:
Paragraph [0019] of Autrey states that a snapshot of a
volume is a record of the state of the volume at a selected point
in time. This passage also states that a snapshot of a log
structured volume is reconstructed from the log by filling an
empty index with block/log position relationships from log
entries to an index. Moreover, this passage states that if a
selected point is a synch entry, the snapshot is in a consistent
state with respect to the storage application that controls the
volume. The passage also notes that a scan terminates when the
index contains an entry for all of the blocks of a volume or the
scanner reaches the beginning of the log, whichever comes first.
(App. Br. 11-12.) Immediately following this passage, Appellant’s Appeal
Brief states:
Reconstructing a snapshot of a log structured volume by
scanning a log, as taught by Autrey, has nothing to do with
determining whether the data operation triggers the at least one
Appeal 2011-003882
Application 11/247,475

4
versioning threshold by scanning the log for a close operation.
There is no concept operation in Autrey of scanning the log for
a close operation for determining whether the data operation
triggers the at least one versioning threshold.
(App. Br. 12.) Again, instead of presenting arguments pointing out with
particularity how the limitations of claim 2 are distinguishable over Autrey,
Appellant merely provides a conclusory statement that Autrey does not teach
the features of this dependent claim. In particular, Appellant merely states
that “[r]econstructing a snapshot of a log structured volume by scanning a
log, as taught by Autrey, has nothing to do with determining whether the
data operation triggers the at least one versioning threshold by scanning the
log for a close operation,” as recited in dependent claim 2, without a
sufficiently detailed explanation of the differences between the limitations of
claim 2 and Autrey.
Accordingly, Appellant has not presented any substantive arguments
with respect to dependent claim 2. See In re Lovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require
more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art.”). Similar to the reasons previously discussed
with respect to claim 2, Appellant has not presented any substantive
arguments with respect to dependent claim 3-5, 10-13, and 18-21.

CONCLUSION
The Request for Rehearing has been considered and denied.
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).
Appeal 2011-003882
Application 11/247,475

5

REHEARING DENIED

bab