Ex Parte Fischer

Patent Trial and Appeal Board

Oct 5, 2017

14097290 (P.T.A.B. Oct. 5, 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.
14/097,290 12/05/2013 Matthew James Fischer 21432 2014
26890 7590 10/10/2017
TA1UFS M STOVFR
EXAMINER
TERADATA US, INC. CHU, GABRIEL L
10000 INNOVATION DRIVE
DAYTON, OH 45342 ART UNIT PAPER NUMBER
2114
NOTIFICATION DATE DELIVERY MODE
10/10/2017 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):
michelle.boldman @ teradata. com
j ames. stover @ teradata.com
td.uspto@outlook.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW JAMES FISCHER
(Applicant: Teradata US, Inc.)
Appeal 2017-001194
Application 14/097,2901
Technology Center 2100
Before MARC S. HOFF, THU A. DANG, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—18, which constitute all of the claims pending in this application.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies itself, Teradata US, Inc., as the real party in interest.
App. Br. 2.
Appeal 2017-001194
Application 14/097,290
THE INVENTION
The disclosed and claimed invention is directed to a method and
system for rebuilding data following a disk failure within a RAID storage
system. Spec. 1:15—17.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A computer-implemented method for rebuilding data
following a disk failure within a RAID storage system, wherein
data is stored in a plurality of RAID sections distributed across a
plurality of data storage devices, the method comprising the steps
of:
maintaining, by a processor, a record of historical I/O
activity to each one of said plurality of RAID sections within said
RAID storage system, and a record of recent I/O activity to each
one of said plurality of RAID sections;
following a failure of one of said plurality of data storage
devices, creating, by said processor, from said record of I/O
activity, an optimized rebuild sequence comprising an
identification of RAID sections prioritized according to
historical and recent I/O activity including application of a
weighting factor to said recent RAID section I/O activity; and
rebuilding, by said processor, the RAID sections residing
on said failed data storage device to a replacement data storage
device in accordance with said optimized rebuild sequence.
REFERENCE
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Olster US 2010/0031082 A1 Feb. 4, 2010
REJECTIONS
Claims 1,2, 4—8, 10-14, and 16—18 stand rejected under pre-AIA 35
U.S.C. § 102(b) as being anticipated by Olster. Final Act. 2—6.
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Appeal 2017-001194
Application 14/097,290
Claims 3, 9, and 15 stand rejected under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Olster and Official Notice. Final Act. 6—7.
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellant. We
are not persuaded by Appellant’s arguments regarding claims 1—18, and we
incorporate herein and adopt as our own: (1) the findings and reasons set
forth by the Examiner in the action from which this appeal is taken (Final
Act. 2—7), and (2) the reasons and rebuttals set forth in the Examiner’s
Answer in response to Appellant’s arguments (Ans. 2-4). We incorporate
such findings, reasons, and rebuttals herein by reference unless otherwise
noted. However, we highlight and address specific findings and arguments
for emphasis as follows.
The Examiner finds Olster discloses all of the limitations recited in
claim 1, including the maintaining and following steps. Final Act. 2—4, 7;
Ans. 2—A.
In the Appeal Brief, Appellant recites the standard for an anticipation
rejection, quotes a portion of the language of claim 1 Appellant claims is not
disclosed by Olster, and makes the following statement:
Paragraphs 32 and 42 of Olster, cited in the Final Office Action
as teaching the limitations of [the maintaining and following
steps] recited in claim 1, and similar limitations recited in
claims 7 and 13, include no discussion or teaching concerning
maintaining records of both (1) historical I/O activity and (2)
recent I/O activity for each one of said plurality of RAID
sections; nor the creation of an optimized rebuild sequence
comprising an identification of RAID sections prioritized
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Application 14/097,290
according to historical and recent I/O activity including
application of a weighting factor to the recent RAID section I/O
activity. Accordingly, it is believed that claims 1, 2, 4, 5, 8, 10,
11, 13, 14, 16, and 17 under pre-AIA 35 U.S.C. 102(b) are
patentable over Olster.
App. Br. 6—7 (emphasis added).
Although Appellant quotes and summarize the language recited in
claim 1 in the Appeal Brief, Appellant's substantive argument (App. Br. 7)
amounts to no more than general denial that fails to address the Examiner’s
findings and is, therefore, insufficient to be considered an argument for
separate patentability. See 37 C.F.R. § 41.37(c)(l)(iv) (“A statement which
merely points out what a claim recites will not be considered an argument
for separate patentability of the claim.”); In reLovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011) (“[W]e hold that the 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.”). For example, Appellant fails to
explain why Olster’s recitation of the factors considered in the rebuilding
recited in paragraph 43 does not disclose the maintain and following steps
recited in claim 1. “If an appellant fails to present arguments on a particular
issue — or, more broadly, on a particular rejection — the Board will not, as
a general matter, unilaterally review those uncontested aspects of the
rejection.” Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
To the extent Appellant makes an argument in the Reply Brief,2 * 4
because Appellant did not raise that argument in his opening brief and good
2 Similar to the Appeal Brief, the Reply Brief consists of quotations and
summaries of claim language, quotations of the cited paragraphs of the prior
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Appeal 2017-001194
Application 14/097,290
cause has not been shown why it should be considered, we will not consider
this argument. 37 C.F.R. §41.41(b)(2); Ex parte Borden, 93 USPQ2d 1473,
1474 (BPAI 2010) (Informative) (“[T]he reply brief [is not] an opportunity
to make arguments that could have been made in the principal brief on
appeal to rebut the Examiner’s rejections, but were not.”). Specifically,
because the Examiner’s Answer does not raise any reasons not raised in the
Final Action,* * 3 there is no reason the Appellant could not have addressed
them in the Appeal Brief.
Accordingly, we summarily sustain the Examiner’s rejection of claim
1, along with the rejections of claim 7 and 13, which are argued on the same
grounds, and dependent claims 2, 4—6, 8, 10-12, 14, and 16—18, which are
not separately argued.
With respect to dependent claims 3,9, 15, Appellant merely contends
that because the additional reference used in the rejections of these claims
(Official Notices) does not cure the shortcomings of the other reference
applied against claim 1, the Examiner failed to make a prima facie case of
obviousness for these claims. App. Br. 8—9. Because we determine that the
rejection of claim 1 is not erroneous for the reasons discussed above, we
sustain the rejections of these claims.
DECISION
For the above reasons, we affirm the Examiner’s decisions rejecting
claims 1—18.
art, and a general denial the prior art discloses certain features recited in the
claim.
3 Compare Ans. 2-A (discussing Olster || 32, 42, 43), with Final Act. 2—4, 7
(same).
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Appeal 2017-001194
Application 14/097,290
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). See 37
C.F.R. § 41.50(f).
AFFIRMED
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