Ex Parte Hahn et al

Board of Patent Appeals and Interferences

Oct 28, 2010

10948828 (B.P.A.I. Oct. 28, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte STEPHEN C. HAHN, LIANE PRAZA and JONATHAN
WILLIAMS ADAMS
____________________

Appeal 2009-004425
Application 10/948,828
Technology Center 2100
____________________

Before JAMES D. THOMAS, THU A. DANG, and CAROLYN D.
THOMAS, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-004425
Application 10/948,828

I. STATEMENT OF THE CASE
Appellants appeal from the Examiner’s final rejection of claims 1-5,
12-20, 22, 23, and 26-31 under 35 U.S.C. § 134(a) (2002). Claims 6-11, 21,
24 and 25 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).

We reverse.

A. INVENTION
According to Appellants, the invention relates to a method for taking a
snapshot of a service instance (Spec. 2, ¶ [0003]).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary and is reproduced below:
1. A method for taking a snapshot of a service instance,
comprising:

transitioning the service instance to a new state, wherein
the service instance is an instance of an executable process;

determining whether to take the snapshot based on the
new state;

obtaining a property composition of the service instance,
wherein the property composition of the service instance
comprises at least one configuration property of the service
instance;

taking the snapshot using the property composition; and

restarting the service instance using the snapshot.

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C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Evoy US 7,203,868 B1 Apr. 10, 2007
(filed on Nov. 26, 2003)
Welsh US 2004/0117572 A1 Jun. 17, 2004
Moriyama US 6,356,904 B1 Mar. 12, 2002
Claims 1-4, 12-14, 16-18 and 26-29 stand rejected under 35 U.S.C. §
102(e) as anticipated by Evoy.
Claims 5, 15, 19, 22, 23, 30 and 31 stand rejected under 35 U.S.C. §
103(a) as unpatentable over Evoy in view of Welsh.
Claim 20 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Evoy in view of Moriyama.

II. ISSUE
Has the Examiner erred in holding that Evoy teaches “transitioning
the service instance to a new state, wherein the service instance is an
instance of an executable process” and “determining whether to take the
snapshot based on the new state” (claim 1)? In particular, the issue turns on
whether Evoy teaches determining whether to take a snapshot based on the
service instance transitioning to a new state.

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence:
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Application 10/948,828

Evoy
1. Evoy discloses detecting changes in system states of a complex
computer system in real-time and logging the changes (col. 1, ll. 28-
29).
2. In a first embodiment, a Resource Monitor is used as a stand-alone
system for real-time monitoring of specified system resources using
snapshots of the specified system resources (col. 3, ll. 21-24),
wherein, for monitoring a process, no monitor object is created
because no snapshot of a process is needed (col. 6, ll. 44-46; Figs. 4A-
4D). In this first embodiment, for monitoring resources other than a
process, a new file object is created representing a current state of an
identified file while a corresponding file object is located representing
a previous state of the identified file (col. 8, ll. 25-30).
3. In a second embodiment, the Resource Monitor is used in conjunction
with a Contrast Manager, and wherein snapshots are created by an
instantiation of the Contrast Manager (col. 3, ll. 24-29).
4. In monitoring a process, the Contrast Manager creates a process
snapshot by receiving a user request to create a process snapshot,
collecting process information for each process and adding the
information to a list of process items, stepping through the list of
process items, creating a process object for each list item, getting
attributes of that process item, and storing the attributes into the newly
created process object (col. 9, ll. 41-52; Fig. 6).
5. Evoy discloses comparing a previously stored snapshot with a current
snapshot, wherein if the attributes are the same the Compare Status is
“Unchanged” but if the attributes do not have the same values, the
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Compare Status is “Changed” (col. 10, l. 63 to col. 11, l. 25; Figs.
10A-10B).

IV. ANALYSIS
Claims 1-4, 12-14, 16-18 and 26-29
Appellants argue that “claim 1 requires determining whether to take a
snapshot of a service instance based on the new state of the service instance”
(App. Br. 11). In contrast, according to the Appellants, “process 600 [of
Evoy] receives a user request to create a process snapshot” (id.). In
particular, Appellants argue that “a thorough reading of Evoy shows that
Evoy is completely silent with respect to the state-based determination
required by the claim” (id.).
The Examiner finds that Evoy discloses “‘transitioning the service
instance to a new state’ as the CreateAndCompareSingleObject procedure
creates a new file object representing the current state of the identified file”
and “locates the corresponding file object, representing a previous state of
the identified file” (Ans. 3). Though the Examiner finds that “Evoy teaches
the newly created file object (e.g. snapshot) is compared to this
corresponding file object in the collection to determine what has been
changed” (Ans. 18), according to the Examiner, “information pertaining to
previous state and current state of identified file, is logged for the records
and the corresponding file object (e.g. snapshot) in the collection is updated
(e.g. determine to take the snapshot based on state change)” (id.).
After reviewing the record on appeal, we agree with the Appellants
that the portions of Evoy cited by the Examiner fail to disclose determining
whether to take a snapshot based on the service instance transitioning to a
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new state, as required by claim 1. That is, we agree with Appellants that the
portions of Evoy “is completely silent with respect to the state-based
determination required by the claim” (App. Br. 11).
Though we agree with the Examiner that the portions of Evoy cited by
the Examiner disclose transitioning to a new state because “the
CreateAndCompareSingleObject procedure creates a new file object
representing the current state of the identified file” and “locates the
corresponding file object, representing a previous state of the identified file”
(Ans. 3), such portions of Evoy merely teach transitioning of a file from an
old state to a new state. That is, we find that such portions are silent as to
transitioning a service instance to a new state, as required by claim 1. In
particular, Evoy discloses a plurality of embodiments (FF 2-4), wherein, in
the first embodiment cited by the Examiner, a file is transitioned to a new
state but there is no transition of a process (service instance) state in this first
embodiment (FF 2).
Furthermore, though Evoy does disclose detecting changes in system
states (FF 1) and does disclose a second embodiment which includes
creating a process snapshot (FF 3-4), Evoy discloses comparing a previously
stored snapshot with a current snapshot to determine if there are changes (FF
5). Thus, Evoy uses snapshots to determine whether there is a change in
states rather than determining whether there is a change in state to take a
snapshot, as required by claim 1. In fact, the Examiner admits that Evoy
teaches that the snapshot is compared to a corresponding object in the
collection “to determine what has been changed” (Ans. 18).
Though the Examiner finds that the snapshot “is updated” which is
equivalent to “determin[ing whether] to take the snapshot based on state
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change” (id.), we disagree since the snapshot that is compared is already
taken. Thus, in addition to the fact that this first embodiment referenced by
the Examiner is directed to a file snapshot and not a process snapshot, in
Evoy, the snapshot is already taken before the comparison/update, and
therefore there is no further determination as to whether or not to take the
snapshot.
Accordingly, though we find that Evoy discloses detecting changes in
system states (FF 1) and creating a process snapshot (FF 3-4), we do not find
any teachings of determining whether to take a snapshot based on the service
instance transitioning to a new state in the sections cited by the Examiner.
As such, we agree with Appellants that the Examiner erred in finding that
the portions cited by the Examiner teach the claimed limitations. Therefore,
we will reverse the rejection of representative claim 1 and claims 2-4, 12-14,
16-18 and 26-29 standing therewith.
Claims 5, 15, 19, 20, 22, 23, 30 and 31
We find that Welsh and Moriyama do not cure the deficiencies of
Evoy. As such, we agree with Appellants that the Examiner erred in finding
that the portions cited by the Examiner teach the claimed limitations.
Accordingly, we will reverse the rejection of claims 5, 15, 19, 22, 23, 30 and
31 under 35 U.S.C. § 103(a) over Evoy in view of Welsh and the rejection of
claim 20 under 35 U.S.C. § 103(a) over Evoy and Moriyama.

V. CONCLUSION AND DECISION
Appellants have shown that the Examiner erred in holding claims 1-4,
12-14, 16-18 and 26-29 unpatentable under 35 U.S.C. § 102(e) and claims 5,
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15, 19, 20, 22, 23, 30 and 31 under 35 U.S.C. § 103(a). Therefore, the
Examiner’s decision rejecting all claims is reversed.

REVERSED

peb

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