Ex Parte Fletcher et al

Patent Trial and Appeal Board

Jun 15, 2016

13008142 (P.T.A.B. Jun. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/008,142 01/18/2011 JAMES C. FLETCHER
79230 7590 06/17/2016
Law Office of Jim Boice
3839 Bee Cave Road
Suite 201
West Lake Hills, TX 78746
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
RSW920100144US1 8207
EXAMINER
LI, SIDNEY
ART UNIT PAPER NUMBER
2136
NOTIFICATION DATE DELIVERY MODE
06/17/2016 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):
J ennifer@BoiceIP.com
Emily@BoiceIP.com
Jim@BoiceIP.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES C. FLETCHER, DAVID P. JOHNSON, and
DAVID L. KAMINSKY
Appeal2014-006041
Application 13/008, 142 1
Technology Center 2100
Before JOSEPH L. DIXON, ERIC S. FRAHM, and
CARLL. SILVERMAN, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 7-18, which are the only claims pending. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 The real party in interest is identified as International Business Machines
Corporation. App. Br. 2.
Appeal2014-006041
Application 13/008,142
The invention relates to enabling access to various storage devices
across a distributed computing environment, such as a cloud. Abstract;
Spec. i-f 1. Claim 7, reproduced below, is exemplary of the subject matter on
appeal:
7. A computer program product for assigning a data item to a
storage location in a computing environment, the computer program
product comprising:
a non-transitory computer readable storage media;
first program instructions to detect a request from a first
computer to store a data item;
second program instructions to locate a volatile memory in a
second computer;
third program instructions to determine if the volatile memory
in the second computer comports with an isolation rule for the data
item, wherein comporting with the isolation rule permits the data item
to be stored in the volatile memory in the second computer;
fourth program instructions to, in response to determining that
the volatile memory in the second computer comports with the
isolation rule for the data item, compare access time for data in the
volatile memory in the second computer with access time for data in a
local hard drive in the first computer; and
fifth program instructions to selectively store the data item in a
storage location that has a lower access time, wherein the storage
location is either the volatile memory in the second computer or the
local hard drive in the first computer as determined by the lower
access time;
and wherein
the first, second, third, fourth, and fifth program instructions are
stored on the non-transitory computer readable storage media.
App. Br. 14 (Claims Appendix).
THE REJECTIONS
Claims 7, 8, 10, 13, 14, and 16 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Gross et al. (US 2009/0150511 Al;
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Application 13/008,142
published June 11, 2009) ("Gross") in viev,r of l\1odha et al. (US
2005/0071599 Al; published Mar. 31, 2005) ("Modha") and Kirshenbaum et
al. (US 2006/0090031; published Apr. 27, 2006) ("Kirshenbaum"). Final
Act. 2-8.
Claims 9 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gross, Modha, Kirshenbaum and Kailas et al. (US
7,502,890 B2; published Mar. 10, 2009) ("Kailas"). Final Act. 8-10.
Claims 11, 12, 17, and 18 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Gross, Modha, Kirshenbaum and Dimitroff et al.
(US 7,379,960 B2; published May 27, 2008) ("Dimitroff'). Final Act. 10-
12.
ANALYSIS
Claims 7, 8, 10, 13, 14, and 16
Appellants argue the combination of the references does not teach the
limitations of claim 7. App. Br. 6-8. According to Appellants:
There is no teaching/suggestion in a combination of the cited art, and
particularly the cited passages from Kirshenbaum, of making a
comparison of access time for data in the volatile memory in the second
computer with access time for data in a local hard drive in the first
computer conditional/contingent upon determining that the volatile
memory in the second computer comports with the isolation rule for the
data item ("in response to determining that the volatile memory in the
second computer comports with the isolation rule for the data item,
compare access time for data in the volatile memory in the second
computer with access time for data in a local hard drive in the first
computer").
That is, a combination of the cited art does not teach or suggest
determining which storage device has a lower access time: a local hard
drive ("a local hard drive in the first computer") or a remote volatile
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Application 13/008,142
memOf'f ("volatile memory in the second computer"), and then storing
data in the faster of the two ("selectively store the data item in a storage
location that has a lower access time, wherein the storage location is
either the volatile memory in the second computer or the local hard
drive in the first computer as determined by the lower access time").
App. Br. 7-8.
The Examiner finds the combination of Gross, Modha, and
Kirshenbaum teach the limitations of claim 7, and presents reasons why such
combination would have been obvious to one of ordinary skill in the art.
Final Act. 2-5. In particular, the Examiner finds Gross teaches a distributed
system including volatile memory; Modha teaches isolation in memory; and
Kirshenbaum teaches comparing access times and selecting lowest access
times. Final Act 2-5, (citing Gross i-fi-13, 21, 40, 107; Modha i-fi-f 19-20;
Kirshenbaum i-fi-1 6, 31, 42).
We are not persuaded by Appellants' arguments and, instead, agree
with the Examiner's findings. Appellants' arguments assert an unreasonably
narrow teaching of the cited references and Appellants argue the references
individually whereas the rejection is based on the combination of the
references. In re Keller, 642 F.2d 413, 426 (CCPA 1981)( "[O]ne cannot
show nonobviousness by attacking references individually where, as here,
the rejections are based on combinations of references" (citations omitted));
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill
in the art.
See Keller, 642 F .2d at 425 (citations omitted).
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Application 13/008,142
As stated by the Supreme Court, the Examiner's obviousness rejection
must be based on
some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness .... [H]owever, the
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 Int'!. Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
The Examiner's findings are reasonable because the skilled artisan
would "be able to fit the teachings of multiple patents together like pieces of
a puzzle" since the skilled artisan is "a person of ordinary creativity, not an
automaton." KSR, 550 U.S. at 420-21.
On this record, Appellants do not present sufficient evidence that the
combination of the cited references was "uniquely challenging or difficult
for one of ordinary skill in the art" or "represented an unobvious step over
the prior art." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418-19). Nor have
Appellants provided objective evidence of secondary considerations, which
our reviewing court guides "operates as a beneficial check on hindsight."
Cheese Sys., Inc. v. Tetra Pak Cheese and Powder Sys., 725 F.3d 1341, 1352
(Fed. Cir. 2013).
In view of the above, we sustain the rejection of claim 7, and claims 8,
10, 13, 14, and 16 as these claims are not argued separately. Final Act. 6-8.
See 37 C.F.R. § 41.37(c)(l)(iv).
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Application 13/008,142
Claims 9 and 15
Regarding claim 9, Appellants argue the Modha does not teach
"instructions to determine that the volatile memory in the second computer
does not comport with the isolation rule due to incompatible data being
stored in the volatile memory in the second computer", as supported by
paragraph [0054] of the present specification." App. Br. 8-9 (citing Modha
i-fi-f 19-20). According to Appellants, Modha teaches allocating cache space
by using cache systems that have the best response times but there is no
teaching:
of determining whether or not volatile memory in a second computer
cannot be trusted ("does not comport with the isolation rule") if it
contains incompatible (i.e., illegal or improper - see paragraph [0054]
of the present specification) data ("determine that the volatile memory
in the second computer does not comport with the isolation rule due to
incompatible data being stored in the volatile memory in the second
computer").
App. Br. 9-10.
Appellants further argue Kailas and Gross do not teach:
instructions to determine that the data item has a higher priority for
being accessed by the first computer than the incompatible data that is
currently stored in the volatile memory in the second computer[ .. ] .
and [ ... ] to move the incompatible data to a hard drive on the second
computer and storing the data item in the volatile memory in the second
computer", as supported by paragraph [0054] of the present
specification.
App. Br. 10. (citing Kailas col. 2, 11. 43--45; Gross i173).
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Application 13/008,142
ii .. ccording to Appellants, Kailas teaches higher priority data replaces
lower priority data in a same cache set, thus describing the standard cache
protocol, and Gross teaches traditional page swapping, in which pages of
data are moved from a hard drive to cache memory and vice versa,
depending on data needs of a system. App. Br. 10 (citing Kailas col 2, 11.
43--45; Gross i-f 73). Appellants then argue "[t]here is no teaching or
suggestion of storing higher priority data in volatile memory while storing
incompatible data on a hard drive ("instructions to determine that the data
item has a higher priority for being accessed by the first computer than the
incompatible data that is currently stored in the volatile memory in the
second computer[ ... ] and [ ... ] to move the incompatible data to a hard
drive on the second computer and storing the data item in the volatile
memory in the second computer"). Id.
The Examiner finds there is no definition of incompatible data and,
therefore, it can be interpreted as "any type of incompatible data ((i.e. data
that did not satisf[y] [sic] a request, data that does not belong in the cache,
data that is no longer useful, etc.). Ans. 16. With this interpretation, the
Examiner finds "[s]ince the "incompatible data" is stored in the cache and
due to the amount of it, the QoS requirement may or may not be met" and
"[a] class will not comport with the isolation of its' class' performance is
due to the "incompatible data" that's in the cache." (citing Modha i-fi-119, 24,
29). Id at 16.
The Examiner also finds Kailas describes the standard cache protocol:
in which higher priority data (new data being requested) will replace
the lower priority data (which can be stale data, invalid data, and/or
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Application 13/008,142
"incompatible" data). \Vhen this lov,rer priority data gets evicted from
cache it has to be written back to lower level memory. By employing
page swapping the new data being requested from the hard drive is
moved into cache and the "incompatible data" is then stored on the hard
drive.
App. Br. 16-17.
We are not persuaded by Appellants' arguments referencing the
Specification as a basis that the Examiner's interpretation of
"incompatible data" is unreasonable or overbroad. Appellants present
no persuasive basis to limit the meaning of "incompatible data" to
exclude the teaching of Modha's QoS caching. Claim terms in a
patent application are given the broadest reasonable interpretation
consistent with the specification, as understood by one of ordinary
skill in the art. In re Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004).
However, great care should be taken to avoid reading limitations of
the Specification into the claims. E-Pass Techs., Inc. v. 3Com Corp.,
343 F.3d 1364, 1369 (Fed. Cir. 2003).
We agree with the Examiner's findings regarding the teachings
of the cited references because Appellants' arguments rely on
unreasonably narrow teaching of the references as would be
understood by one of ordinary skill in the art.
In view of the above, we sustain the rejection of claims 9 and
15.
Claims 11, 12, 17, and 18
Regarding claim 11, Appellants argue the combination of the
references does not teach:
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Application 13/008,142
instrt1ctions to establish a threshold resource consumption rate for both
the volatile memory in the second computer and the local hard drive in
the first computer, wherein the threshold resource consumption rate sets
a maximum permissible level of ancillary resources used to access the
volatile memory in the second computer or the local hard drive in the
first computer[ ... ] and [ ... ] to select the volatile memory in the second
computer or the local hard drive in the first computer to store the data
item according to whether the volatile memory in the second computer
or the local hard drive in the first computer has a lower threshold
resource consumption rate relative to one another, as supported by
paragraph [0048] of the present specification.
App. Br. 11.
According to Appellants, the Examiner relies on Dimitroff as teaching
these features. App.Br. 11 (citing Dimitroff col. 3, 11. 7-1 O; col. 3, 1. 63 to
col. 4, 11. 1-2). Appellants further argue Dimitroff teaches metrics of each
available resource can be stored in a registry and that the allocation of
storage resources can be based on a particular resource being available
and/or meeting certain Quality of Service (QOS) requirements but:
There is no teaching/suggestion of selecting either the volatile memory
in the second computer or the hard drive in the first computer,
depending on which device consumes more ancillary resources
("instructions to establish a threshold resource consumption rate for
both the volatile memory in the second computer and the local hard
drive in the first computer, wherein the threshold resource consumption
rate sets a maximum permissible level of ancillary resources used to
access the volatile memory in the second computer or the local hard
drive in the first computer[ ... ]and[ ... ] to select the volatile memory
in the second computer or the local hard drive in the first computer to
store the data item according to whether the volatile memory in the
second computer or the local hard drive in the first computer has a lower
threshold resource consumption rate relative to one another").
App. Br. 12.
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We are not persuaded by Appellants' arguments and, instead,
agree with the Examiner's findings. Appellants' arguments are
similar to arguments considered above and based on unreasonably
narrow teachings of the references as would be understood by one of
ordinary skill in the art.
Therefore, we sustain the rejection of claim 11, and claims 12,
17, and 18 as these claims are not argued separately.
DECISION
We sustain the Examiner's decision rejecting claims 7-18.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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