Ex Parte Gold

Patent Trial and Appeal Board

Aug 25, 2016

12906108 (P.T.A.B. Aug. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/906,108 10/17/2010 Stephen Gold
56436 7590 08/29/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82264781 9492
EXAMINER
BIBBEE, JARED M
ART UNIT PAPER NUMBER
2161
NOTIFICATION DATE DELIVERY MODE
08/29/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte STEPHEN GOLD
Appeal2015-002565
Application 12/906, 108
Technology Center 2100
Before ROBERT E. NAPPI, MIRIAM L. QUINN, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
NAPPI, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1, 2, 4, 6 through 13, 15 through 18 and 20 through 23.
We reverse.
INVENTION
The invention is directed to a method for providing storage tiers for
different backup types where the selection of the tier is based upon the type
of backup job. See Abstract. Claim 1 is representative of the invention and
reproduced below:
Appeal2015-002565
Application 12/906, 108
1. A method of providing storage tiers for different backup types,
compnsmg:
receiving a backup job from a client for data on a
virtualized storage node;
identifying a type of the backup job;
storing data in at least one other virtualized storage
node in a first tier of the at least one other virtualized
storage node or a second tier of the at least one other
virtualized storage node, selection between the first tier and
the second tier based on the type of the backup job, wherein
the first tier is for non-deduplicated data and the second tier
is for deduplicated data; and
migrating a prior backup in the first tier to another
storage node in the second tier after a new full backup is
successfully stored in the first tier and correlated with the
prior backup.
REJECTION AT ISSUE
The Examiner has rejected claims 1, 2, 4, 6 through 13, 15 through 18
and 20 through 23 under 35 U.S.C. § 103(a) as unpatentable over Bryant et
al. (US 2011/0246735 Al; Oct. 6, 2011), Anglin et al. (US 7,567,199 Bl;
July 28, 2009), Nguyen et al. (2006/0010174 Al; Jan. 12, 2006) and Botes et
al. (US 8,055,622 Bl; Nov 8, 2011). Answer 3-8. 1
ANALYSIS
Appellant argues the Examiner's rejection of independent claims 1,
10, and 17 is in error as the combination of the references does not teach
"migrating a prior backup in the first tier to another storage node in the
second tier after a new full backup is successfully stored in the first tier and
1 Throughout this Opinion we refer to the Appeal Brief (filed July 22, 2014)
("Appeal Br."), Reply Brief, (filed Dec. 30, 2014) ("Reply Br."), and the
Examiner's Answer (mailed Nov. 4, 2014) ("Ans.").
2
Appeal2015-002565
Application 12/906, 108
correlated with the prior backup," as recited in claim l and similarly recited
in independent claims 10 and 17. App. Br. 5-7 Reply Br. 2--4. Specifically,
Appellant argues that Botes, which the Examiner relies upon to teach this
limitation, teaches migrating new data from the first tier to the second tier
and not a prior backup in the first tier as claimed. App. Br. 6-7, and Reply
Br. 3. The Examiner equates Botes tiers A, B, and C with the claimed first
tier and the immutable data container as the claimed secondary tier. Ans. 9.
Further, the Examiner cites to col. 8, 11. 28 through 35 as teaching that a
prior backup is migrated from the first tier to the immutable data container
(second tier). Ans. 9-10. We concur with the Examiner that Botes teaches
that data is migrated to the immutable container and the data migrated may
be just the changes to a file (which is similar to deduplicated data).
However, we do not find that the cited paragraphs of Botes teach that the
migrated data is a prior backup as claimed, rather it is the current file as
argued by Appellant. Thus, Appellant's arguments have persuaded us of
error in the Examiner's rejection of independent claims 1, 10 and 17.
Accordingly, we do not sustain the Examiner's rejection of claims 1, 2, 4, 6
through 13, 15 through 18 and 20 through 23.
DECISION
The decision of the Examiner to reject claims 1, 2, 4, 6 through 13, 15
through 18 and 20 through 23 is reversed.
REVERSED
3