Ex Parte Gee et al

Patent Trial and Appeal Board

Sep 6, 2016

11627287 (P.T.A.B. Sep. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111627,287 01125/2007
49080 7590 09/08/2016
DALE F REGELMAN
QUARLES & BRADY, LLP-Attn: IP Docket
ONE SOUTH CHURCH A VENUE, STE. 1700
TUCSON, AZ 85701-1621
FIRST NAMED INVENTOR
Lourdes Magally Gee
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.
TUC920060122US 1 1642
EXAMINER
BULLOCK JR, LEWIS ALEXANDER
ART UNIT PAPER NUMBER
2199
NOTIFICATION DATE DELIVERY MODE
09/08/2016 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):
reena.mendez@quarles.com
pat-dept@quarles.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LOURDES MAGALL Y GEE, JASON JAMES GRAVES,
KEVAN D. HOLDAWAY, DAVID MICHAEL MORTON, and
IV AN RONALD OLGUIN II
Appeal2015-004091
Application 11/627,287
Technology Center 2100
Before JOHN A. JEFFERY, BRADLEY W. BAUMEISTER, and
DENISE M. POTHIER, Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-20, which constitute all the claims pending in
Appeal2015-004091
Application 11/627,287
this application. App. Br. 3. 1 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
INVENTION
Appellants' invention updates multiple hardware devices sharing a
common address. Abstract. Using prior art methods, an unsuccessful
firmware image update can render a device inoperable. Spec. 1:14--16. For
this reason, Appellants' method uses two controllers for installing the
firmware update. Id. at 2:8-13. Specifically, after downloading the
firmware image update, the method installs the image in one controller, then
installs the update in the other. Abstract.
Claim 1, reproduced below with our emphasis, is illustrative:
1. A method to update firmware disposed in multiple devices in
a computing system, comprising the steps of:
supplying a computing system comprising
four assemblies external to and in communication with a
data storage management module, wherein said data storage
management module is in communication with one or more host
computers, and wherein each assembly comprises a single
address known to said data storage management module each
assembly further comprising
a first controller comprising a first firmware image,
a first battery-backed up RAM [(Random-Access
Memory)] memory interconnected with said first controller,
a second controller comprising said first firmware image,
a second battery-backed up RAM memory interconnected
said second controller, wherein said first battery-backed up
1 Throughout this opinion, we refer to (1) the Appeal Brief (App. Br.) filed
September 16, 2014; (2) the Examiner's Answer (Ans.) mailed December
23, 2014; and (3) the Reply Brief (Reply Br.) filed February 23, 2015.
2
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Application 11/627,287
RAM memory differs from said second battery-backed up RAM
memory,
a first communication link comprising said address and
interconnecting said first controller, said second controller, and
said data storage management module and a second
communication link interconnecting said first controller and said
second controller:
providing second firmware image to said address using
said first communication link;
writing said second firmware image to said first battery-
backed up RAM memory;
providing by said first controller said second firmware
image to said second controller usmg said second
communication link;
writing said second firmware image to said second
battery-backed up RAM memory;
installing said second firmware image in said second
controller, and
installing said second firmware image in said first
controller.
The Examiner relies on the following as evidence of unpatentability:
Bramhall
Berg
Sakuda
US 6,675,258 Bl
US 6,836,859 B2
US 2007 /0055970 Al
Jan. 6,2004
Dec. 28, 2004
Mar. 8, 2007
Apple, Fibre Channel Basics, Technology Brief (2006) ("Apple").
THE REJECTIONS
Claims 1, 9-11, and 13 are rejected under 35 U.S.C. § 103(a) over
Bramhall and Berg. Ans. 2-7.
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Application 11/627,287
Claims 2-8, 14, 15, and 17-202 are rejected under 35 U.S.C. § 103(a)
over Bramhall, Berg, and Apple. 3 Ans. 7-14.
Claims 12 and 16 are rejected under 35 U.S.C. § 103(a) over
Bramhall, Berg, and Sakuda. Ans. 14--15.
THE OBVIOUSNESS REJECTION OVER
BRAMHALL AND BERG
Contentions
The Examiner finds that Bramhall discloses every recited element of
claim 1, except for (1) the data-storage-management module in
communication with one or more host computers and the recited first
communication link, (2) the four assemblies, and (3) battery-backed-up
RAM. Ans. 2-5. The Examiner relies on Berg to teach the recited data-
storage-management module and first communication link in concluding
that the claim would have been obvious. Id. at 5. Specifically, the Examiner
finds that Berg's fault-tolerant storage system 120 corresponds to the recited
data-storage-management module. See id.
Regarding the recited four assemblies, the Examiner further finds that
Bramhall's storage system corresponds to one of these recited assemblies.
2 The Examiner states that claims 15 and 18 are rejected over Bramhall and
Berg. Ans. 2, 7. However, claims 15 and 18 depend from claims 14 and 17,
which are rejected over Bramhall, Berg, and Apple. Ans. 7. Because
independent claims 14 and 17 are rejected over the additional reference,
Apple, (id.), we treat claims 15 and 18 as rejected over this additional
reference, as well, and deem the error as harmless.
3 We treat Appellants' item 2 in "Grounds of Rejection to be Reviewed on
Appeal" section of the principal Brief, which summarizes the basis for this
rejection, (App. Br. 11 ), as a typographical error given that it is corrected in
the Reply Brief (see Reply Br. 3).
4
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Application 11/627,287
See id. at 2-3 (citing Bramhall 5:22-26 (describing storage system 160)).
According to the Examiner, it would have been obvious to include four
assemblies in Bramhall. See Ans. 4, 16. To address the recited each
assembly's single address, the Examiner determines that it was well known
to use an address for communication between two different modules.
Id. at 16. According to the Examiner, Bramhall discloses communications
between a management system and an assembly. Id. (citing Bramhall 4:5-
7). Concerning the recited battery-backed-up RAM, the Examiner concludes
that it would have been obvious to use battery-backed-up RAM in the
Bramhall-Berg combination. Ans. 4.
Appellants argue that the Bramhall-Berg combination lacks the recited
four assemblies and the single address known to the data-storage-
management module. App. Br. 12; Reply Br. 3. According to Appellants,
Bramhall does not teach that storage system 160 comprises a single address
known to management system 100. Reply Br. 3.
Appellants further assert that Berg lacks a data-storage-management
module in communication with one or more host computers. App. Br.
12-13. According to Appellants, Berg expressly teaches that fault-tolerant
system 120 does not communicate with the host computer. Id. at 13 (citing
Berg 4:56-61). Appellants further contend that that Berg's fault-tolerant
storage system 120 is not a management module. Reply Br. 4--5.
Additionally, Appellants argue that Bramhall's management system 100 is
not in communication with a second controller in system 160. App. Br.
12-13.
Appellants even further contend that Bramhall lacks the recited first
communication link. Id. at 13-15. Likewise, Appellants argue that Berg
5
Appeal2015-004091
Application 11/627,287
nowhere teaches the first communication link. Id.; Reply Br. 5---6. Berg's
Figure 2, in Appellants' view, does not show a communication link
interconnecting host computer 110, controller 130a, and controller 130b.
App. Br. 14. According to Appellants, Berg teaches the same combination
of links as Bramhall. Id. at 14--15.
Appellants also argue that Bramhall teaches away from the recited
two different memories. Id. at 15-17. According to Appellants, Bramhall
teaches a single storage volume implemented as a RAID (Redundant Array
of Independent Disks), rather than two different memory units. Id. at 16
(citing Bramhall 4:47, 57---60); Reply Br. 6-8. Appellants argue that even if
some or all of disk drives 118 were configured into multiple logical units,
Bramhall lacks a particular disk drive in communication with both controller
110 and controller 114. Reply Br. 7-8. In particular, Appellants explain
why RAID technology shows that Bramhall's controllers perform
management on a RAID, rather than use the recited first memory differing
from a second memory. Id.
Issues
Under§ 103, has the Examiner erred in rejecting claim 1 by finding
that Bramhall and Berg collectively would have taught or suggested:
I. "four assemblies external to and in communication with a
data storage management module ... wherein each assembly
comprises a single address known to said data storage management
module"
'
II. a data storage management module in communication with a
host computer,
6
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Application 11/627,287
Ill. a first communication link comprising an address and
interconnecting a first controller, second controller, and data storage
management module, and
IV. a first battery-backed-up RAM memory that differs from a
second battery-backed-up RAM, each with the respective
interconnections?
Analysis
I.
Apart from stating that Bramhall and Berg lack four assemblies and
the recited single address, Appellants' argument is supported by little
reasoning in the principal Brief. See App Br. 12. Similarly, Appellants'
arguments in the Reply Brief are based at least partly on a text search of
Bramhall. See Reply Br. 3. That is, Appellants conducted a search for the
word "address," and this search did not return any results. Id. Appellants
then conclude that Bramhall lacks an explicit disclosure of an address. See
id. We are not persuaded by this contention.
Here, the Examiner's rationale is based on obviousness, accounting
for inferences one skilled in the art would have drawn from Bramhall. See
Ans. 2--4, 16. In particular, the Examiner finds that Bramhall' s storage
system corresponds to the recited assembly. See id. at 2-3 (citing Bramhall
5:22-26 (describing storage system 160)). According to the Examiner, it
would have been obvious to duplicate this assembly, predictably yielding
four assemblies as recited. See Ans. 4, 16. To this finding, Appellants
provide no rebuttal. See Reply Br. 3.
7
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Application 11/627,287
The Examiner further finds that it was well known for modules (e.g.,
computers) to use an address for communication, such as communications
on communication channel 150 between management system 100 and the
assembly 160. Id. at 3 (citing Bramhall 5:5-8), 16; see also Bramhall Fig. 1.
Accordingly, Appellants' argument that Bramhall does not expressly state
that an address is used (Reply Br. 3) does not squarely address the
Examiner's reasoning based on obviousness that accounts for the inferences
one skilled in the art would have drawn from how Bramhall' s components
communicate (see Ans. 3, 16).
For the above-stated reasons, we are unpersuaded by Appellants'
argument that the Bramhall-Berg combination lacks the recited four
assemblies in communication with the data storage management module,
each assembly comprising a single address known to the module.
II.
We next construe the key disputed limitation of claim 1, which calls
for "a data storage management module." In some embodiments, the
Specification describes that a management module (e.g., 120) is in a
BLADECENTER computing device. Spec. 4: 12-15. Further, the
Specification describes that management module 120 comprises the
elements shown within item 120 (e.g., 121-125) in Figure 1. Id. at 5:14--18,
Fig. 1. For example, the management module may contain embedded web
servers and a processor among other elements. Id. at 5: 14--6:2. But the
management module is not limited to element 120. See, e.g., id. at 8:21-22,
9:6-8. So although these examples provide a context for interpreting the
claim term, such a description does not clearly set forth a definition for a
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Appeal2015-004091
Application 11/627,287
"management module" sufficient to rebut the presumption that the term
should be given its plain meaning- a module that manages data storage.
Given this interpretation, we are unpersuaded by Appellants'
argument that Berg's fault-tolerant storage system 120 is not a management
module. See Reply Br. 4--5. Berg's fault-tolerant storage system 120 is part
of disk-storage system 95. Berg 4:20-25, cited in Ans. 5. For example,
fault-tolerant storage system 120 could be a disk array or a RAID.
Berg 4:25-32. So like the recited data-storage-management module, Berg's
fault-tolerant storage system 120 is at least related to "data storage." See id.
Moreover, system 120 contains application 122 for managing the system.
Id at 4:33-34, 4:51-54. On this record, the Examiner's finding that Berg's
system 120 is a module for managing data storage (see Ans. 5) is reasonable.
We are also unpersuaded by Appellants' argument that Berg's system
120 is not in communication with a host computer. See App. Br. 12-13. To
be sure, Berg's host system 110 communicates through controllers 130a and
130b with system 120. See Berg 4:56-61, cited in App. Br. 13; see also
Berg, Fig. 2. But we do not see, nor do Appellants point out, any claim
limitations that would exclude communication using an intermediary, as is
the case in Berg. To the extent that Appellants argue that Berg lacks any
communication (App. Br. 12-13), we disagree. In particular, Berg's
interface---controllers 130a and 130b--allow host system 110 to
communicate with system 120 as if system 120 were a large disk system.
Berg 4:59---63. Accordingly, the Examiner's finding that Berg teaches the
recited communication at issue (Ans. 5) is reasonable.
Furthermore, Appellants' contention that Bramhall' s management
system 100 is not in communication with a second controller in subsystem
9
Appeal2015-004091
Application 11/627,287
160 (App. Br. 12-13) is not germane to the Examiner's rejection, which
relies on Berg for this teaching (see Ans. 5).
Accordingly, we are unpersuaded that the Examiner erred in finding
that Berg, when combined with Bramhall, teaches a data-storage-
management module in communication with a host computer, as recited in
claim 1.
III.
As discussed above, Berg's controllers 130a and 130b form an
interface for host system 110 to communicate with system 120. See Berg
4:56-61. From this disclosure (id.), the Examiner infers that these
controllers use some communication link. See Ans. 18. This inference is
reasonable because without some communication link, host 110 would be
unable to use system 120 as a disk. See Berg 4:61---63 (describing that
system 120 appears as a disk to host 110). Further supporting this
reasoning, the Examiner points out that Berg states that the controllers are
"coupled" to system 120, suggesting a link. Ans. 18 (citing Berg 4:55-58).
In response to this determination, Appellants have not explained how such
coupling and interfacing can be accomplished absent some communication
link. See Reply Br. 5-6. Therefore, Appellants' argument that Berg fails to
teach the first communication link (App. Br. 13-15; Reply Br. 5---6) is
unpersuasive.
Moreover, Appellants' arguments that Bramhall lacks the first
communication link (App. Br. 13-15) does not address the Examiner's
rejection, which cites Berg for this feature (Ans. 5).
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Application 11/627,287
Accordingly, we are unpersuaded that the Examiner erred in finding
that Berg, when combined with Bramhall, teaches a first communication link
comprising an address and interconnecting a first controller, second
controller, and data storage management module, as recited in claim 1.
IV.
Lastly, we are unpersuaded by Appellants' argument that Bramhall
teaches away from two different memories. App. Br. 15-17.4 In
Appellants' view, Bramhall teaches a single storage volume implemented as
a RAID, rather than a first memory differing from a second memory.
Id. at 16 (citing Bramhall 4:47, 57---60); Reply Br. 6-8. According to
Appellants, Bramhall does not teach that controllers 110 and 114 differ as
logical units. App. Br. 16.
But this argument does not squarely address the Examiner's
obviousness rationale. Ans. 4. Specifically, the Examiner finds that it
would have been obvious to use battery-backed-up RAM. Id. So, the
Examiner concludes that it would have been obvious to substitute this type
of RAM for Bramhall' s RAID disks. See id. Because the Examiner relies
on battery-backed-up RAM in this way (id.), Appellants' arguments directed
to Bramhall' s RAID storage (Reply Br. 6-8) fail to address the Examiner's
rationale.
The Examiner's determination is reasonable (Ans. 4) for at least the
reason that both battery-backed-up RAM and disk subsystems are
4 Appellants' Brief refers to Berg, but quotes Bramhall. App. Br. 16.
Because the quotation and reference numbers 110 and 114 are from
Bramhall, we understand Appellants to mean Bramhall, not Berg. Id.
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Application 11/627,287
non-volatile memory. See MICROSOFT COMPUTER DICTIONARY 313 (4th ed.
1999).
Moreover, Appellants have not shown that the Examiner's proposed
combination would render the prior art unsuitable for its intended purpose to
teach away from using a first and second memory. See In re Gordon, 733
F.2d 900, 902 (Fed. Cir. 1984). In fact, Bramhall states that subdivision
"may be as simple as defining a single storage volume" including all disks.
Bramhall 4:58---60.
But this is not the only embodiment. Bramhall uses the plural
"volumes" and "subsets" in referring to logical subdivision, suggesting more
than a single storage volume. Id. at 4:50-58. On this record, we find no
evidence that Bramhall criticizes, discredits, or otherwise discourages a two-
memory arrangement. See In re Fulton, 391 F3.d 1195, 1201 (Fed. Cir.
2004). Accordingly, we are unpersuaded by Appellants' argument that
Bramhall teaches away from two different memories (App. Br. 15-17).
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of independent claim 1 and independent claim 13 and
dependent claims 9-11, not separately argued.
THE OBVIOUSNESS REJECTION OVER BRAMHALL, BERG,
AND APPLE
The Examiner rejects claims 2-8, 14, 15, and 17-20 under 35 U.S.C.
§ 103(a) over Bramhall, Berg, and Apple. 5 Ans. 7-14. Appellants argue
claim 15 depends from claim 13 and is patentable for the same reasons.
5 For the reasons discussed above, we presume that the Examiner intended to
reject claims 15 and 18 under Bramhall, Berg, and Apple.
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Application 11/627,287
App. Br. 17. Appellants also argue claim 18 with claim 1 in the briefs. See
App. Br. 12-16; Reply Br. 3-8. The issues before us, then, are the same as
those in connection with claims 1 and 13, and we refer Appellants to our
previous discussion. We sustain the rejection of claims 15 and 18 for the
above-discussed reasons. Additionally, to the extent that Appellants
intended to refer to independent claim 17 rather than claim 18, we are not
persuaded for the reasons discussed above for claim 1.
Appellants do not present any arguments for claims 2-8, 14, 17, 19, or
20, or discuss the additionally-cited reference, Apple. See App. Br. 12-26.
Notably, Appellants twice present the same arguments against the rejection
of claims 12 and 16 and Sakuda without mentioning claims 2-8, 14, 17, 19,
or 20. Compare id. at 17-22 with id. at 22-26. Similarly, other than the
summary of the grounds of rejection (Reply Br. 2), the Reply Brief does not
discuss claims 2-8, 14, 17, 19, or 20. See id. at 3-8. Accordingly, we
sustain the Examiner's rejection of claims 2-8, 14, 17, 19, and 20. See, e.g.,
MPEP § 1205.02 (9th ed. Rev. 07.2015, Nov. 2015) ("If a ground of
rejection stated by the examiner is not addressed in the appellant's brief,
appellant has waived any challenge to that ground of rejection and the Board
may summarily sustain it.")
THE OBVIOUSNESS REJECTION OVER BRAMHALL, BERG,
ANDSAKUDA
Claims 12 and 16 depend indirectly from independent claims 1 and
13, respectively. In arguing against the rejection for each of these claims,
Appellants repeat the arguments presented for claim 1 and further asset
Sakuda does not cure the purported deficiencies. App. Br. 17-26. The
issues before us, then, are the same as those in connection with claim 1, and
13
Appeal2015-004091
Application 11/627,287
we refer Appellants to our previous discussion. We sustain this rejection for
the above-discussed reasons.
CONCLUSION
The Examiner did not err in rejecting claims 1-20 under§ 103.
DECISION
The Examiner's decision rejecting claims 1-20 is 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
14
*
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Notice of References Cited
Documeni Number
Country Code-Nun1ber-Kind Code
A US-
B US-
c US-
D US-
E US-
F US-
G US·
H US-
US-
J US-
K US-
L US-
M US-
N
0
p
Q
R
s
T
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Date
MM-YYYY
Date
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Application/Control No.
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Examiner
U.S. PATENT DOCUMENTS
Name
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Couniry
NON-PATENT DOCUMENTS
Name
Appiicant(s)IPatent Under Patent
Appeal No.
2015-004091
Art Unit
[2l99 I Page 1 of1
Classifica1ion
Classifica1ion
* Include as applicable: Au1hor, Tille Date. Pub!isher. Edition or Volume, Pe1iinen1 Pages)
u MICROSOFT COMPUTER DICTIONARY 313 (4tll ed.1999).
v
w
x
*!\copy of this t"eference :snot be1n9 furnished wnn tn:s Off;ce act:on (See MPEP § 707.05(a).)
Dates in MM-YVYY forrna.t are publication dates. Classifications n1ay be US or foreign.
U.S. Pa.tent and Trademaok Oftice
PT0-892 (Rev 01-2001) Noiice of References Cited Part of Paper No.
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