Ex Parte Gold et al

Patent Trial and Appeal Board

Feb 29, 2016

12507782 (P.T.A.B. Feb. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/507,782 0712212009 Stephen Gold
56436 7590 03/02/2016
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.
82258439 6673
EXAMINER
LU,KEVINX
ART UNIT PAPER NUMBER
2199
NOTIFICATION DATE DELIVERY MODE
03/02/2016 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
Ex parte STEPHEN GOLD and JEFFREYS. TIFF AN
Appeal2013-005101
Application 12/507,782 1
Technology Center 2100
Before DENISE M. POTHIER, ERIC B. CHEN, and
IRVINE. BRANCH, Administrative Patent Judges.
BRANCH, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We affinn.
STATEMENT OF THE CASE
Appellants' claimed subject matter provides for mitigating resource
usage during virtual storage replication. Abstract. Claim 1 is illustrative:
1 According to Appellants, the real party in interest is Hewlett-Packard
Development Company, L.P. App. Br. 2.
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Application 12/507,782
1. A method comprising:
detecting quality of a link between virtual storage
libraries used for replicating data;
determining a number of concurrent data replication jobs
needed to saturate the link, wherein the number of concurrent
data replication jobs needed to saturate the link is inversely
proportional to bandwidth of the link;
dynamically adjusting the number of concurrent data
replication jobs to saturate the link; and
mitigating resource usage during virtual storage
replication to reduce impact of replication on backup
performance, deduplication, and other tasks running at servers
responsible for the virtual storage libraries.
THE REJECTIONS
The Examiner rejected claims 1-20 under 35 U.S.C. § 112, paragraph
2, as being indefinite for failing to particularly point out and distinctly claim
the subject matter which applicant regards as the invention. Ans. 2-3. 2,3
The Examiner rejected claims 1-20 under 35 U.S.C. § 103(a) as
unpatentable over Wilkes (US 2003/0208614 Al; Nov. 6, 2003),
Bahadiroglu (US 7,012,893 B2; Mar. 14, 2006), and Yildirim (Esma
Yildirim et al., "Dynamically Tuning Level of Parallelism in Wide Area
Data Transfers," DADC' 08 (June 24, 2008). Ans. 4--10.
2 Throughout this opinion, we refer to (1) the Appeal Brief filed September
29, 2012 ("App. Br."); (2) the Examiner's Answer mailed December 20,
2012 ("Ans."); and (3) the Reply Brief filed February 19, 2013 ("Reply
Br.").
3 Although indicating that the rejection based on 35 U.S.C. § 112, second
paragraph has been withdrawn with respect to claim 10, line 14 (Ans. 2), the
rejection of claim 10 is maintained with regard to other issues (Ans. 3).
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Application 12/507,782
THE INDEFINITENESS REJECTION
Claim 1 recites "determining a number of concurrent data replication
jobs needed to saturate the link, wherein the number of concurrent data
replication jobs needed to saturate the link is inversely proportional to
bandwidth of the link." The Examiner rejected claim 1 because "[i]t is
unclear what is meant by 'the number of jobs needed to saturate the link is
inversely proportional to bandwidth of the link.'" Ans. 3 (emphasis in
original). The Examiner rejected all remaining claims either on the same
grounds or as depending from claims having this supposed shortcoming. Id.
We agree with the Examiner that the "determining" limitation is
indefinite.
"The specification shall conclude with one or more claims particularly
pointing out and distinctly claiming the subject matter which the applicant
regards as his invention." 35 U.S.C. § 112, i-f 2 (pre-AIA). The test for
definiteness under 35 U.S.C. § 112, paragraph 2, is whether "those skilled in
the art would understand what is claimed when the claim is read in light of
the specification." Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d
1565, 1576 (Fed. Cir. 1986) (citations omitted).
Here, the specification provides insufficient guidance as to "the
number of concurrent data replication jobs needed to saturate the link"
because there is no disclosed standard for identifying the point of saturation.
Merely providing that the number "is inversely proportional to bandwidth of
the link" (Spec. i-f 1) would not sufficiently inform those skilled in the art of
the claimed invention, particularly the metes and bounds of how saturation is
achieved. See Ex parte Brummer, 12 USPQ2d 1653 (BPAI 1989). For
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Application 12/507,782
example, the Examiner correctly points out that Appellants' Table 1 (Spec. i-f
26) does not provide sufficient clarity, for it discloses how various latencies
(i.e., throughputs (7.5--40MB/s)) having a constant bandwidth (i.e., 1 GB)
affect link saturation. Moreover, Appellants note that Table 1 is merely
exemplary test data and that "the number of concurrent jobs is not limited to
being based on this test data." Id. i-f 26. Accordingly, there is no disclosed
standard for "determining a number of concurrent data replication jobs
needed to saturate the link," and how this number is inversely proportional
to bandwidth. Ans. 13. Paragraph 1, on the other hand, discusses a general
relationship that the number of jobs increases with lower bandwidth links,
but fails to discuss the levels at which saturation of a link is achieved and the
precise number of jobs needed to saturate a link at a given bandwidth. Spec.
i-f 1. Appellants' claims are, therefore, indefinite under 35 U.S.C. § 112,
paragraph 2 (pre-AIA) as the Examiner finds.
THE OBVIOUSNESS REJECTION
As to claim 1, the Examiner cites Wilkes for "detecting quality of a
link between virtual storage libraries used for replicating data." Ans. 4--5.
The Examiner cites Bahadiroglu for teaching the recitations of "determining
a number of concurrent data replication jobs needed to saturate the link,"
"dynamically adjusting the number of concurrent data replication jobs to
saturate the link," and "mitigating resource usage during virtual storage
replication to reduce impact of replication on backup performance,
deduplication, and other tasks running at servers responsible for the virtual
storage libraries." Id. at 5---6. The Examiner cites Yildirim for the
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Application 12/507,782
limitation, "wherein the number of concurrent data replication jobs needed
to saturate the link is inversely proportional to bandwidth of the link." Id. at
6-7.
Appellants argue error because Bahadiroglu's disclosure of
"'optimum bandwidth' does not disclose 'a number of concurrent data
replication jobs needed to saturate the link' and particularly not as further
defined in the claim." App. Br. 6-7. Appellants also argue that Yildirim
does not disclose "'the number of concurrent data replication jobs needed to
saturate the link is inversely proportional to bandwidth of the link."' Id. at
7-8. In other words, Appellants argue that the combination of Wilkes,
Bahadiroglu, and Yildirim would not have taught or suggested "determining
a number of concurrent data replication jobs needed to saturate the link,
wherein the number of concurrent data replication jobs needed to saturate
the link is inversely proportional to bandwidth of the link" as recited in
claim 1. Appellants rely on the same arguments for independent claims 10
and 19 and for dependent claims 2-9, 11-18, and 20. Id. at 8.
In view of our finding above that the claims are indefinite, we hesitate
to evaluate the Examiner's art rejection, for a prior art rejection of a claim,
which is so indefinite that "considerable speculation as to [the] meaning of
the terms employed and assumptions as to the scope of such claims" is
needed, is likely imprudent. See In re Steele, 305 F.2d 859, 862, (CCP A
1962) (holding that the Examiner and the Board were wrong in relying on
what, at best, were speculative assumptions as to the meaning of the claims
and in basing a rejection under 35 U.S.C. § 103). But to the extent we are
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Application 12/507,782
able to affix meaning to the claims, we are unpersuaded of error in the
Examiner's decision to reject the claims as obvious.
Claim 1 recites a single determination of the number of concurrent
data replication jobs needed to saturate the link, wherein the number is
inversely proportional to bandwidth of the link. Given the above-expressed
concerns, we adopt and find reasonable the Examiner's determination that
this phrase, as best understood, is "assumed to be any of the inverse
relationship between number of jobs and per job bandwidth (e.g.,
throughput), direct relationship between latency and number of jobs, or
inverse relationship of latency and per job bandwidth." Ans. 2-3. As such,
Bahadiroglu and Yildrim collectively teach and suggest the disputed
"determining" limitation. Yildrim teaches a direct relationship between
latency and the number of streams (e.g., number of jobs) and an inverse
relationship between per stream bandwidth and the number of streams. Ans.
13-15 (citing Yildrim, Abstract and Equation 3, and App. Br. 7-8
(indicating Appellants' admission)). Additionally, Bahadiroglu teaches
determining latency within a link to determine packet size (e.g., job size).
Ans. 5 (citing Bahadiroglu, Abstract, 17: 16-25). Accordingly, as best
understood, the claim, broadly construed, reads on the prior art's teaching of
a determining a number of data replication jobs needed to saturate a link and
a subsequent, dynamic adjustment thereof.
In view of the foregoing, we affirm the Examiner's decision to reject
claim 1 and also to reject claims 2-20, argued collectively.
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DECISION
We affirm the Examiner's decision to reject claims 1-20 as indefinite,
and we affirm the Examiner's decision to reject claims 1-20 as obvious.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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