Ex Parte Gold et al

Patent Trial and Appeal Board

Sep 30, 2016

12889709 (P.T.A.B. Sep. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/889,709 09/24/2010 Stephen Gold
56436 7590 10/04/2016
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.
82263821 6825
EXAMINER
RUTTEN, JAMES D
ART UNIT PAPER NUMBER
2197
NOTIFICATION DATE DELIVERY MODE
10/04/2016 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 MIKE FLEISCHMANN
Appeal2015-006907
Application 12/889,709
Technology Center 2100
Before JASON V. MORGAN, MELISSA A. RAAP ALA, and
NABEEL U. KHAN, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
Appeal2015-006907
Application 12/889,709
STATEivIENT OF THE CASE
Exemplary Claim
1. A method of reimaging a multi-node storage system,
compnsmg:
downloading and storing an upgrade image to a master node in a
backup system;
pushing the upgrade image stored on the master node from the
master node onto all other nodes in the backup system;
installing the upgrade image at each node while leaving an
original image intact at each node in the backup system;
switching a boot marker from the original image to the upgrade
image installed at each node in the backup system; and
automatically rebooting each node in the backup system to the
upgrade image based on the boot marker, wherein each of the
nodes reboots in an unconfigured state;
initializing the nodes in the unconfigured state by checking for a
node Iu configuration file and setting the node Iu to the previous
node ID on each of the nodes in the backup system.
App. Br. 16, Claims Appx.
Rejections
Claims 1, 3, 5, 6, 8, 9, 12, 13, 16, and 18 are rejected under 35 U.S.C.
§ 103(a) as beingunpatentable over Lee (US 6,931,637 B2; Aug. 16, 2005),
Kottomtharayil (US 2006/0224852 Al Oct. 5, 2006), Dayal (US 7,483,370
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Application 12/889,709
Bl; Jan. 27, 2009), Reed (US 7,562,208 Bl; July 14, 2009), and Lee '266
(US 8,015,266 B 1; Sept. 6, 2011). 1 Final Act. 3-11.
Claim 2 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lee, Kottomtharayil, Dayal, Reed, Lee '266, and Lerche (US 6,457,175
B 1; Sept. 24, 2002). Final Act. 11.
Claim 4 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lee, Kottomtharayil, Dayal, Reed, Lee '266, and Mittal (US 2004/
0268112 Al; Dec. 30, 2004). Final Act. 11-12.
Claim 7 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lee, Kottomtharayil, Dayal, Reed, Lee '266, and Murray
(US 6,330,653 Bl; Dec. 11, 2001). Final Act. 12-13
Claim 10 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lee, Kottomtharayil, Dayal, Reed, Lee '266, and VanRooven
(US 6,591,376 Bl; July 8, 2003). Final Act. 13.
Claim 11 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lee, Kottomtharayil, Dayal, Reed, Lee '266, VanRooven, and Mittal.
Final Act. 13-14.
Claims 14 and 15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lee, Kottomtharayil, Dayal, Reed, Lee '266, and Lerche.
Final Act. 14.
Claim 17 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lee, Kottomtharayil, Dayal, Reed, Lee '266, and Denby (US 2005/
0257215 Al; Nov. 17, 2005). Final Act. 14-15.
1 The Examiner fails to identify claims 3, 12, and 13 in the statement of the
rejection (Final Act. 3), but includes these claims in the body of the rejection
(id. at 8, 10). We hold this error harmless.
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Claim 19 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lee, Kottomtharayil, Dayal, Reed, Lee '266, and Burokas (US 2003/
0208675 Al; Nov. 6, 2003). Final Act. 15-16.
Claim 20 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lee, Kottomtharayil, Dayal, Reed, Lee '266, Burokas, and Kavian (US
2008/0052461 Al; Feb. 28, 2008). Final Act. 16.
CLAIMS 1-18
Appellants present patentability arguments for claim 1 and assert,
without presenting further arguments, claims 2-18 are patentable in view of
reciting or incorporating similar subject matter. We accordingly select
claim 1 as representative. 3 7 C.F .R. § 41.3 7 ( c )( 1 )(iv) (2014) ("[T]he failure
of appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately."). For the reasons below, the
arguments are not persuasive.
Appellants argue that Lee does not teach or suggest claim 1 's
"downloading and storing an upgrade image to a master node in a backup
system[.]" App. Br. 7 (emphasis omitted); Reply Br. 2. We have considered
the arguments in view of the Examiner's findings (see Ans. 2; see also Final
Act. 4 ). Appellants' contentions fail to distinguish persuasively the claimed
downloading and storing of data from the receipt (i.e., download) of upgrade
data by Lee's upgrade server.
Appellants further argue:
Moreover, the Examiner asserted it obvious to "use Lee's
multi-node system with Kottomtharayil's backup system in order
to provide common storage options as suggested by
Kottomtharayil." See Final Office Action, p. 4 (citing
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Kottomtharayil, para. [0043]). To the contrary, Kottomtharayil
merely mentions "backup copies." See Kottomtharayil, para.
[0043]. There is no appropriate reason to move the Lee Upgrade
Server to somehow become a master node in a back-up system.
Reply Br. 2.
As reflected by Appellants' citation to the Final Action, this Reply
Brief argument arises solely from the findings as presented by the Final
Action and thus will not be considered because it was not raised via the
Appeal Brief and good cause was not shown why the argument was not
raised earlier. See 37 C.F.R. § 41.41(a)(2) (2014). In short, this Reply Brief
argument is untimely and thus waived.
Appellants argue that Lee does not teach or suggest claim 1 's
"pushing the upgrade image stored on the master node from the master node
onto all other nodes in the backup system[.]" App. Br. 8 (emphasis
omitted); Reply Br. 3. We have considered the arguments in view of the
Examiner's findings at the Answer's pages 2-3 (see also Final Act. 5). We
adopt the Examiner's findings and conclusions as our own. Appellants'
contentions fail to distinguish persuasively the claimed pushing of an
upgrade from Lee upgrade server's distributing of an upgrade (see below)
and initiating of installation. Mere attorney argument and conclusory
statements unsupported by factual evidence are entitled to little probative
value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (requiring "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"). As indicated by the Examiner, the briefs do not present evidence
for a plain meaning or Specification definition of "push" (much less a
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distinguishing feature). See Ans. 3 ("Initially, 1t 1s noted that Appellant has
not pointed to any particular definition of 'pushing' as might be provided by
the specification or the claims, or by any other source."). For example,
Appellants' citation to the Specification at paragraph 8 provides no meaning
of "push" that contradicts the Examiner's broad, but reasonable
interpretation, with which we agree. See Ans. 3.
Further, we disagree with Appellants' contention that "the Lee
upgrade server merely sends an update signal." Reply Br. 3. We instead
agree with the Examiner's well-reasoned and supported determination, at the
paragraph spanning the Answer's pages 3--4, that Lee pushes the upgrade
data onto client devices. Appellants' arguments are unresponsive and,
therefore, unpersuasive.
Appellants argue that Dayal and Reed do not teach or suggest
claim 1 's "switching a boot marker from the original image to the upgrade
image installed at each node in the backup system[.]" App. Br. 8-9; Reply
Br. 3--4. We have considered Appellants' arguments in view of the
Examiner's findings at the Answer's pages 4--5 (see also Final Act. 6-7).
We adopt the Examiner's findings and conclusions. Appellants' assertion
fails to distinguish persuasively the claimed switching a book marker to an
update from Reed's boot variable change to boot an upgrade (see below).
Furthermore, Appellants' contentions that Dayal and Reed do not teach or
suggest claim 1 's above subject matter are conclusory because, as indicated
by the Examiner, the briefs do not explain why boot variable changes for
booting upgraded software would not be understood as "switching a boot
marker" to upgraded software. See Ans. 4 ("Initially, it should be noted that
Appellant is arguing limitations that are not claimed (i.e. 'the same boot
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marker') ... [and] has not provided any particular definition for a boot
marker[.]").
For example, the briefs do not present evidence of a plain meaning or
Specification definition of "boot marker" that distinguishes claim 1 's
"switching a boot marker" over Reed's changing of boot variables so as to
boot from the partition storing a newly copied upgrade kernel (and thereby
execute the kernel). See Reed col. 4, 11. 6-10. Appellants do not even
address this teaching of Reed, despite being the sole portion of Reed cited by
the Examiner's Response to Arguments section. See Ans. 5 (citing Reed col.
4, 11. 7-9). Appellants merely note the citation and then contend, again
without supporting explanation, that "Reed merely adjusts boot variables to
boot from an arbitrary drive." Reply Br. 3--4.
Appellants additionally argue that Lee '266 does not teach or suggest
claim 1 's "wherein each of the nodes reboots in an unconfigured state;
initializing the nodes in the unconfigured state by checking for a node ID
configuration file and setting the node ID to the previous node ID on each of
the nodes in the backup system." App. Br. 9; Reply Br. 4. We have
considered Appellants' arguments in view of the Examiner's findings at the
Answer's page 5 (see also Final Act. 7). We adopt the Examiner's findings
and conclusions. Appellants' assertions regarding Lee '266 are
unresponsive to the Examiner's findings and are thus unpersuasive.
The Examiner presented a substantial explanation of why Lee '266
teaches the "unconfigured state" limitation, as viewed in light of the
Specification. Ans. 5. And, the Examiner plainly reads the ensuing "node
ID" limitations-"initializing the nodes ... by checking for a node ID
configuration file and setting the node ID to the previous node ID"---on
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Lee '266 at column 3, lines 8-24 (Final Act. 7), which states a "node name
in the root volume of the storage system ... may be replaced or modified
without affecting the node name" (Lee '266 col. 3, 11. 8-12 (emphasis
added)).
Appellants thus had sufficient information to understand the
Examiner's findings, but failed to respond to the Examiner's findings
persuasively. See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011)
("[S]pecific column and line cites to the prior art reference would have put
any reasonable applicant on notice of the examiner's rejection."). In the
Appeal Brief, Appellants merely quote the at-issue claim language and
allege patentability without any supporting explanation and evidence. See
App. Br. 9. In the Reply Brief, Appellants merely and newly allege that
Lee's and Lee '266's teaching are "antithetical," again without any without
any supporting explanation and evidence. See Reply Br. 4.
For the foregoing reasons, Appellants have not shown error in the
obviousness rejections of claims 1-18. We accordingly sustain the
rejections.
CLAIM 19
Claim 19 depends from claim 1 and further recites providing a drive
emulator as part of the upgrade image for installing the upgrade image at
each node in the backup system.
Appellants argue:
Buroka discloses "emulation is a result of inventive boot code
downloaded from the network server." [No citation.] However,
in para. [0028] Buroka explains that "PXE code 66 will establish
an initial emulated ['virtual drive'] connection between each
client and the server." Therefore, emulation (as allegedly taught
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in Buroka) is fundamentally different than a drive emuiator as
part of the upgrade image, as required by the claim.
App. Br. 13.
We do not find Appellants' arguments persuasive because the
bootstrapping of an upgrade image can represent part of the installation of
the upgrade image (e.g., booting the upgrade image on a client or node, thus
making it operational---or installed---on the client or node). See Buroka
i-f 28. Thus, Buroka's use of emulation provided by real mode execution of
master boot record (MBR) code 33 teaches or suggests the claimed
providing of a drive emulator (MBR code 33) as part of the upgrade image
for installing (bootstrapping) the upgrade image at each node (at each client)
in the backup system. Accordingly, we sustain the Examiner's 35 U.S.C.
§ 103(a) rejection of claim 19.
CLAIM20
Claim 20 depends from claim 19 and further recites wherein the drive
emulator executes an emulate mode to emulate a removable media drive by
translating read requests from disk controllers into commands for
redirecting to corresponding offsets in the upgrade image to access contents
of the upgrade image, and return emulated removable media drive responses
to each node in the backup system.
Appellants contend that Kavian's cited teachings fail "to teach the
claim recitation of return emulated removable media drive responses to
each node in the backup system." App. Br. 14. However, Appellants'
contention is conclusory and fails to persuasively distinguish the claimed
return of emulated removable media drive responses from Kavian's
emulation of a removable media drive, as combined with the teachings and
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suggestions of Lee, Kottomtharayil, Dayal, Reed, Lee '266, and Burokas.
See Final Act. 16 (citing Kavian i-fi-1 26, 2 8).
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 20.
DECISION
The Examiner's decision to reject 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). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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